                                                                                ACCEPTED
                                                                            03-15-00446-CV
                                                                                    7113707
                                                                 THIRD COURT OF APPEALS
                                                                            AUSTIN, TEXAS
                                                                      9/25/2015 10:24:30 PM
                                                                          JEFFREY D. KYLE
                                                                                     CLERK

                   NO. 03-15-00446-CV

                     IN THE                 FILED IN
                                     3rd COURT OF APPEALS

            COURT OF APPEALS FOR THE 9/25/2015 10:24:30 PM
                                          AUSTIN, TEXAS


         THIRD COURT OF APPEALS DISTRICTJEFFREY   D. KYLE
                                              Clerk
                 AUSTIN, TEXAS
                           ______________

                    BAXTER OIL SERVICE, LTD.
                          APPELLANT

                             VERSUS

        TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
                        APPELLEE
                           ______________

APPEAL FROM THE 345TH JUDICIAL DISTRICT COURT, TRAVIS COUNTY, TEXAS
                       NO. D-1-GN-10-000772


                BRIEF OF APPELLANT

     PULMAN, CAPPUCCIO, PULLEN, BENSON & JONES, LLP
                   Elliott S. Cappuccio
              Texas State Bar No. 24008419
                   Leslie Sara Hyman
              Texas State Bar No. 00798274
                   Etan Z. Tepperman
              Texas State Bar No. 24088514
          2161 NW Military Highway, Suite 400
                San Antonio, Texas 78213
               (210) 222-9494 (Telephone)
                (210) 892-1610 (Facsimile)
                     Attorneys for Appellant
             APPELLANT REQUESTS ORAL ARGUMENT
                             NO. 03-15-00446-CV


                                 IN THE
                        COURT OF APPEALS FOR THE
                     THIRD COURT OF APPEALS DISTRICT
                             AUSTIN, TEXAS
                             ______________

                           BAXTER OIL SERVICE, LTD.
                                 APPELLANT

                                   VERSUS


              TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
                              APPELLEE
                            ______________
                      IDENTITY OF PARTIES AND COUNSEL

Appellant:                              Appellate Counsel for Appellant:
Baxter Oil Service, Ltd.                Elliott S. Cappuccio
                                        Leslie Sara Hyman
                                        Etan Z. Tepperman
                                        Pulman, Cappuccio,
                                        Pullen, Benson & Jones, LLP
                                        2161 NW Military Highway, Suite 400
                                        San Antonio, Texas 78213




                                  –i–
                                        Trial Counsel for Appellant:
                                        Cynthia J. Bishop
                                        C Bishop Law PC
                                        P. O. Box 612994
                                        Dallas, Texas 75261

Appellee:                               Counsel for Appellee:
Texas Commission on Environmental       Thomas H. Edwards
Quality                                 Craig J. Pritzlaff
                                        Office of the Attorney General
                                        P. O. Box 12548, Capital Station
                                        Austin, Texas 78711




                               – ii –
                                               TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ............................................................................... i
TABLE OF CONTENTS ....................................................................................................... iii
INDEX OF AUTHORITIES ................................................................................................... iv
STATEMENT OF THE CASE ................................................................................................. 1
ORAL ARGUMENT STATEMENT ........................................................................................ 2
ISSUES PRESENTED ............................................................................................................ 2
STATEMENT OF FACTS ...................................................................................................... 3
SUMMARY OF THE ARGUMENT ....................................................................................... 8
ARGUMENT ....................................................................................................................... 9
I. Baxter Was Deprived of Due Process ......................................................................... 9
     A. Baxter Is Entitled To Due Process .............................................................. 9

     B. “Adequate” Notice is an Essential Element of Due Process ..................... 11

     C. The Notice to Baxter Did Not Provide Baxter Sufficient Information ..... 15

            1. The TCEQ Did Not Provide Any Notice of the
               Right to Appeal the Order ................................................................. 15
            2.      Constructive Notice of Appellate Rights Is Inadequate
                    Given the Circumstances and Conditions of This Case ..................... 18
            3.      The TCEQ Did Not Provide Adequate Notice of the
                    of the Issues or Consequences .......................................................... 22
     D. Because it Lacked Sufficient Information, the Order
        Violated Due Process and Was Void ........................................................ 24
II. Because the Order is Void, it May be Collaterally Attacked
    at Any Time and the Trial Court Erred in Granting
    the TCEQ’s Plea to the Jurisdiction ................................................................. 27
CONCLUSION AND PRAYER ........................................................................................... 29
CERTIFICATE OF COMPLIANCE ...................................................................................... 31
CERTIFICATE OF SERVICE .............................................................................................. 31


                                                       – iii –
                                         INDEX OF AUTHORITIES

Cases                                                                                                        Page

Armstrong v. Manzo,
 380 U.S. 545 (1965) ..............................................................................................10

Barrera-Montenegro v. United States,
 74 F.3d 657 (5th Cir. 1996) ...................................................................................14

Baxter v. Colvin,
 No. 14-CV-01306, 2014 WL 6985149 (N.D. Cal. Dec. 10, 2014) .......................13
Boddie v. Connecticut,
 401 U.S. 371 (1971) ..........................................................................................9, 10

Bradford v. Edelstein,
 467 F. Supp. 1361 (S.D. Tex. 1979) ................................................................12, 18

Buckner Trucking, Inc. v. United States,
 354 F. Supp. 1210 (S.D. Tex.1973) .......................................................................22
Butland v. Bowen,
673 F. Supp. 638 (D. Mass. 1987) ...........................................................................13

Chocolate Bayou Water Co. & Sand Supply v. Tex. Natural Res.
Conserv. Comm’n,
 124 S.W.3d 844 (Tex. App.—Austin 2003, pet. denied) ......................................28
Chow v. Dole,
 677 S.W.2d 220 (Tex. App.—Houston [1st Dist.] 1984, no writ).........................18
City of Celina v. Dynavest Joint Venture,
 253 S.W.3d 399 (Tex. App.—Austin 2008, no pet.),
 rev’d on other grounds, Rusk State Hospital v. Black,
 392 S.W.3d 88 (Tex. 2012)....................................................................................28

City of Dallas v. VSC, LLC,
 347 S.W.3d 231 (Tex. 2011) ......................................................................20, 21, 22

City of Waco v. Roddey,
 613 S.W.2d 360 (Tex. App.—Waco 1981, no writ) ..............................................12



                                                  – iv –
                               INDEX OF AUTHORITIES (CONTINUED)

Cases (Continued)                                                                                              Page

City of West Covina v. Perkins,
   525 U.S. 234 (1999) ..........................................................................19, 20, 21, 22

Cleveland Bd. of Educ. v. Loudermill,
 470 U.S. 532 (1985) ..............................................................................................10

Consolidation Coal Co. v. Georgia Power Co.,
 781 F.3d 129 (4th Cir. 2015) .................................................................................26
Dusenbery v. United States,
 534 U.S. 161 (2002) ..............................................................................................20

FCC v. Pottsville Broadcasting Co.,
 309 U.S. 134 (1940) ..............................................................................................13
Fuentes v. Shevin,
 407 U.S. 67 (1972) ..................................................................................................9
Gonzalez v. Sullivan,
 914 F.2d 1197 (9th Cir. 1990) .........................................................................13, 27

Hess & Clark, Division of Rhodia, Inc. v. Food and Drug Administration,
 495 F.2d 975 (D.C. Cir. 1974) ...............................................................................13
Houston v. Fore,
 412 S.W.2d 35 (Tex. 1967).............................................................................. 11, 29

In re Guardianship of B.A.G.,
794 S.W.2d 510 (Tex. App.—Corpus Christi 1990, no writ) ............................27, 28

In re E.R.,
  385 S.W.3d 552 (Tex. 2012)............................................................................28, 29
In re Ruffalo,
  390 U.S. 544 (1968) ..............................................................................................13
Joint Anti-Facist Comm. v. McGrath,
 341 U.S. 123 (1951) .......................................................................................... 9, 11



                                                   –v–
                               INDEX OF AUTHORITIES (CONTINUED)

Cases (Continued)                                                                                              Page

Jones v. Flowers,
 547 U.S. 220 (2006) ..............................................................................................20

L.B.L. Oil Co. v. Int’l Powers Serv., Inc.,
 777 S.W.2d 390 (Tex. 1989)..................................................................................18

Langdale v. Villamil,
 813 S.W.2d 187 (Tex. App.—Houston [14th Dist.] 1991, no writ) ......................12
Lesikar v. Rappeport,
 33 S.W.3d 282 (Tex. App.—Texarkana 2000, no pet) ..........................................28

Logan v. Zimmerman Brush Co.,
 455 U.S 422 (1982) .........................................................................................10, 14
Lopez v. Lopez,
 757 S.W.2d 721 (Tex. 1988)..................................................................................18
Mathews v. Eldridge,
 424 U.S. 319 (1976) ..................................................................................... Passim

Memphis Light, Gas, & Water Div. v. Craft,
 436 U.S. 1 (1978) ..................................................................................................18
Misium v. Misium,
 902 S.W.2d 195 (Tex. App.—Eastland 1995, no writ)..........................................18
Moss v. Malone,
 880 S.W.2d 45 (Tex. App.—Tyler 1994, writ denied) ..........................................18

Mosser v. Plano Three Venture,
 893 S.W.2d 8 (Tex. App.—Dallas 1994, no writ) ........................................... 11, 12
Mullane v. Central Hanover Bank Trust Co.,
 339 U.S. 306 (1950) ..................................................................................... Passim

Navato v. Sletten,
 560 F.2d 340 (8th Cir.1977) ..................................................................................13



                                                  – vi –
                               INDEX OF AUTHORITIES (CONTINUED)

Cases (Continued)                                                                                             Page

North Alabama Express, Inc. v. United States,
 585 F.2d 783 (5th Cir.1978) ..................................................................................13
N.Y. Life Ins. Co. v. Brown,
 84 F.3d 137 (5th Cir. 1996) .............................................................................27, 28

Peralta v. Heights Med. Ctr. Inc.,
 485 U.S. 80 (1988) ................................................................................................14

Roman Catholic Diocese of Dallas v. County of Dallas Tax Collector,
 228 S.W.3d 475 (Tex. App.—Dallas 2007, no pet.) ..............................................28
Rotello v. State,
 492 S.W.2d 347 (Tex. Civ. App.—Houston [1st Dist.] 1973,
 writ ref’d n.r.e., per curiam) ..................................................................................18
Security State Bank & Trust v. Bexar Cty.,
 397 S.W.3d 715 (Tex. App.—San Antonio 2012, pet. denied) .......................27, 28
Stubbs v. Stubbs,
  685 S.W.2d 643 (Tex. 1985)..................................................................................18
Tramco Enter., Inc. v. Indep. Am. Sav. Ass’n,18
 739 S.W.2d 944 (Tex. App.—Fort Worth 1987, no writ) ......................................18

Valero South Texas Processing Co. v. Starr County Appraisal District,
 954 S.W.2d 863 (Tex. App.—San Antonio 1997, no writ) ................................... 11

Villegas v. Carter,
 711 S.W.2d 624 (Tex. 1986) ..................................................................................18

Vine St. LLC v. Borg Warner Corp.,
 776 F.3d 312 (5th Cir. 2015) ...........................................................................25, 26

Walker v. City of Hutchison,
 352 U.S. 112 (1956) .................................................................................. 11, 18, 22




                                                 – vii –
                                INDEX OF AUTHORITIES (CONTINUED)

Cases (Continued)                                                                                                Page

Williams v. Holley,
 653 S.W.2d 639 (Tex. App.—Waco 1983, writ ref’d n.r.e.) .................................12

Wolff v. McDonnell,
 418 U.S. 539 (1974) ..............................................................................................13

Constitutions

U.S. Const. amend. XIV ........................................................................................2, 9

Tex. Const. art. 1, § 19 ...............................................................................................9

Statutes

Tex. Health & Safety Code § 361.188 ....................................................................... 5

Tex. Health & Safety Code § 361.272 ....................................................................... 5

Tex. Health & Safety Code § 361.321 ...............................................................18, 26

Tex. Health & Safety Code § 361.322 ...............................................................18, 26


Secondary Sources

Webster’s New International
Dictionary of the English Language (2nd ed. 1935) ...............................................23




                                                  – viii –
                            STATEMENT OF THE CASE

Nature of the Case          Appellee, the Texas Commission on Environmental
                            Quality (the “TCEQ”), sued Appellant, Baxter Oil
                            Service, Ltd. (“Baxter”), in order to enforce an
                            administrative order. CR 283–424. Baxter filed a
                            motion for summary judgment, attempting to negate
                            elements of the TCEQ’s claim. CR 1458–1581.
                            In addition to responding to Baxter’s motion for
                            summary judgment on the merits, the TCEQ filed a
                            plea to the jurisdiction claiming that Baxter
                            impermissibly sought a collateral attack of the
                            TCEQ’s administrative order.          CR 1582–1703.
                            After further briefing by both parties, CR 1704–1934,
                            and a hearing, RR 1–56, the trial court granted the
                            TCEQ’s plea to the jurisdiction. CR 1592.

Trial Court                 The Honorable Amy Clark Meachum of 345th Judicial
                            District Court, Travis County, Texas.

Trial Court’s Disposition   The trial court granted the TCEQ’s plea to the
                            jurisdiction and dismissed Baxter’s motion for
                            summary judgment. CR 1592.




                                  –1–
                           ORAL ARGUMENT STATEMENT
   Baxter Oil Service, Ltd. requests oral argument because this appeal turns on

whether the administrative order issued by the Texas Commission on

Environmental Quality is void, which itself turns on whether the order contains

sufficient   information   to   comply with      the   demands    of   due    process.

The determination of whether a notice of potential deprivation complies with due

process is a fact intensive one requiring balancing three factors. No bright line rule

exists.   Oral argument would facilitate the Court’s understanding of the facts

presented below and how the balancing test applies to those facts.


                                 ISSUES PRESENTED
   Whether the trial court erred in granting the TCEQ’s plea to the jurisdiction

because (1) due process clause of the 14th Amendment to the United States

Constitution requires adequate notice and an opportunity to be heard before a

person is deprived of a property interest by the state, (2) an administrative order

that violates a person’s due process rights is void; and (3) an administrative order

that is void for failing to comport with due process can be collaterally attacked.




                                     –2–
                              STATEMENT OF FACTS
   Sam Baxter (“Sam”) is the owner of Baxter Oil Service, Ltd. (“Baxter”).

CR 1329, 1473. He founded the small family-operated business in the fall of 1983

and has managed all aspects of Baxter’s operations since that time. CR 1329,

1473. Baxter’s business for over 30 years has been transporting and brokering fuel

for customers who burn fuel for energy recovery, re-sell fuel, or sell blended fuel

products. CR 1329, 1473. The materials Baxter sells, brokers, or otherwise uses in

its business are not intended for disposal, but rather for re-use. CR 1329, 1473.

   In the 1980s, Baxter sold petroleum products to the Voda Petroleum Company

(“Voda Petroleum”), amongst others. CR 1329, 1473. The products Baxter sold to

Voda Petroleum were intended for resale and did not require processing by Voda

Petroleum.    CR 1323, 1329.        Sam was never an owner or operator of

Voda Petroleum.    CR 1373.      To Sam’s recollection, Baxter never transferred

materials to Voda Petroleum. CR 1330, 1473. Rather, Voda Petroleum picked up

the products from Baxter.     CR 1330, 1473.       Baxter sold to Voda Petroleum

products such as No. 4 oil, naptha, transformer oil, on-spec used oil fuel,

natural gas condensate, and “‘light ends.’” CR 1329, 1473. Baxter had other

customers for these products. CR 1329, 1474. However, Baxter chose to sell to

Voda Petroleum because Baxter was able to charge it higher prices. CR 1330,

1473.


                                    –3–
   Voda Petroleum had complete control over the products it bought from Baxter.

CR 1330, 1475. Baxter had no role in making waste disposal decisions, or any

decisions for that matter, for Voda Petroleum. CR 1330, 1475. The only business

Baxter had with Voda Petroleum was selling fuel products for use or resale.

CR 1323–24, 1475. Waste disposal was never part of Baxter’s business with

Voda Petroleum. CR 1324, 1330, 1475. Sam had no knowledge of any disposal

occurring at Voda Petroleum’s facility. CR 1330, 1475.

   Voda Petroleum’s facility (the “Voda Site”) sat on 6.12 acres of land in

Gregg County, Texas.       CR 445.        Appellee, the Texas Commission on

Environmental Quality (“TCEQ”), contends that the Voda Site was used as a

waste oil recycling facility from 1981 to 1991. Id. In 1995, the TCEQ conducted

an investigation to determine if Voda Petroleum’s operations caused environmental

contaminants to enter the groundwater or soil at the Voda Site.                   Id.

After conducting investigations into a site’s potential risk to public health and the

environment resulting from releases or potential releases of hazardous substances,

a site is given a Hazard Ranking System (“HRS”) score. Id. The HRS score

assigned to the Voda Site by the TCEQ was not severe enough to qualify the

Voda Site as federal “Superfund Site.” Id. The TCEQ referred the matter to the

United States Environmental Protection Agency (the “EPA”). Id.




                                    –4–
   The EPA investigated the Voda Site and on March 27, 1996, issued an action

memorandum.      CR 446. That action memorandum stated that the Voda Site

contained hazardous substances, had received crude oil, and had large quantities of

oil that were subject to the United States Clean Water act and the United States Oil

Pollution Act.   Id.   As part of the EPA’s removal action, various sources of

contamination were removed from the Voda Site. Id. By late 1997, the EPA’s

remediation efforts were completed. Id. On-site soil and ground-water was tested

and the results showed that the EPA’s efforts had minimized threats of direct

human contact and inhalation. Id. The EPA sought to recover its removal costs

from various potentially responsible parties. Id. Although Baxter denied liability,

in 2000 it settled the EPA’s demand for cleanup costs for $10,000. CR 1324.

   Three years after the EPA concluded its removal action, the TCEQ proposed

listing the Voda Site on the State Superfund Registry on November 17, 2000.

CR 447. The TCEQ never re-scored the Voda Site under the HRS following the

EPA’s removal action. Id. From 2001 to 2008, the TCEQ conducted remedial

investigations and a feasibility study at the Voda Site. CR 448.

   After years of investigations, the TCEQ issued the Voda Site State Superfund

Order (“the Order”) pursuant to section 361.188 and 361.272 of the Texas Health

& Safety Code on February 12, 2010. CR 1733–1812. The Order, when counting

the accompanying exhibits, is 79 pages long.       Id.   Numerous obligations are


                                    –5–
imposed on the “responsible parties,” such as: (1) reimbursing the TCEQ for its

past investigative costs, CR 1758; (2) designing and implementing a remedial

action, CR 1761–74; and (3) obtaining Post Construction Financial Assurance,

CR 1773–74. Nothing in the Order, including its exhibits, stated that Baxter was

liable for any amounts of money. CR 1733–1812. Nothing in the Order, including

its exhibits, stated that the Order was final and appealable. Id. Nothing in the

Order, including its exhibits, stated that Baxter or any of the other potentially

responsible parties had the right to appeal the Order. Id. And nothing in the Order,

including its exhibits, stated how much the Voda Site’s remediation efforts will

cost. Id.

   The Order was accompanied by a short cover letter, simply stating to

“[p]ersons on the attached mailing list . . . [e]nclosed is a copy of an administrative

order issued by the Commission regarding the above referenced matter.

Should you have any questions, please contact . . . [the] Chief Clerk.” CR 1813.

That letter was sent to Baxter and hundreds of other potentially responsible parties

on February 19, 2010. CR 1813–31.

   Young Chevrolet, Inc., a potential responsible party listed on the Order, initiated

the proceeding below on March 12, 2010, by filing suit against the TCEQ to appeal

the Order. CR 5–110. Other potentially responsible parties filed lawsuits against

the TCEQ, and on May 18, 2010, all of the cases involving the Voda Site were


                                     –6–
consolidated in the trial court. CR 221–245. On August 8, 2011, the TECQ filed a

counterclaim against all the plaintiffs in the pending actions and in the same

pleading, instituted a third-party action against numerous potentially responsible

parties who did not appeal the Order. CR 283–424. Baxter was one of these

third-party defendants. CR 303. On March 12, 2012, Sam, on behalf of Baxter,

sent a letter to counsel for the TCEQ in response to the Order, enclosing an answer

setting forth Baxter’s defenses to liability under the Order.       CR 1883–85.

On November 15, 2013, Baxter, through counsel, filed an answer in the proceeding

below. CR 578–81.

   Baxter filed a motion for summary judgment on March 27, 2015, on the

grounds that Baxter negated two essential elements of the TCEQ’s third-party

lawsuit because Baxter did not send solid waste to the Voda Site and never

intended to dispose of solid waste at the Voda Site. CR 1458–1581. On April 17,

2015, the TCEQ filed a plea to the jurisdiction, requesting the district court to

dismiss Baxter’s summary judgment motion.          CR 1582–1703.       The TCEQ

contended that the Order was final and unappealable and could not be collaterally

attacked by Baxter. CR 1588–92. The district court granted the TCEQ’s plea to

the jurisdiction on June 29, 2015, dismissing Baxter’s motion for summary

judgment without consideration of the merits. CR 1952. This appeal followed.

CR 1953–55.


                                   –7–
                          SUMMARY OF THE ARGUMENT
   The trial court erred in granting the TCEQ’s plea to the jurisdicton. By the

Order entered in connection with the Voda Site, the TCEQ attempts to impose

monetary obligations on Baxter. Baxter is entitled to due process before it is

deprived by the TCEQ of such property. Due process requires both adequate

notice and an opportunity to be heard. The Order fails to comport with due process

because it does not provide adequate notice. Specifically, the Order not only fails

to inform Baxter of its appellate remedies, but affirmatively misrepresents the

finality of the Order. The Order also fails to inform Baxter of the possible scope of

its liability, thereby depriving Baxter of key information necessary to determining a

proper response.

   Because the Order fails to comport with due process, it is void. And because

the Order is void, it may be collaterally attacked. Accordingly, the TCEQ’s plea to

the jurisdiction, which argued that Baxter could not collaterally attack the Order by

means of a summary judgment motion, was without merit.




                                    –8–
                                           ARGUMENT
I. Baxter Was Deprived of Due Process
      A. Baxter Is Entitled To Due Process
      The Fourteenth Amendment to the Constitution of the United States provides

that no person shall be deprived of property without due process of law. 1

In Fuentes v. Shevin, 407 U.S. 67 (1972), the United States Supreme Court

observed:

         The constitutional right to be heard is a basic aspect of the duty of
         government to follow a fair process of decisionmaking when it acts to
         deprive a person of his possessions. The purpose of this requirement
         is not only to ensure abstract fair play to the individual. Its purpose,
         more particularly, is to protect his use and possession of property from
         arbitrary encroachment – to minimize substantively unfair or mistaken
         deprivations of property.

Id. at 80–81; see also Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (“The ‘right

to be heard before being condemned to suffer grievous loss of any kind, even

though it may not involve the stigma and hardships of a criminal conviction, is a

principle basic to our society.’”) (quoting Joint Anti-Facist Comm. v. McGrath,

341 U.S. 123, 168 (1951) (Frankfurter, J., concurring)).

      Although the required procedures may vary according to the interests at stake in

particular contexts,2 “the fundamental requirement of due process is the

opportunity to be heard ‘at a meaningful time and in a meaningful manner.’”

1
 Article 1, section 19 of the Texas Constitution states: “No citizen of this State shall be deprived
of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the
due course of the law of the land.”
2
    Boddie v. Connecticut, 401 U.S. 371, 378 (1971).


                                           –9–
Mathews, 424 U.S. at 333 (quoting Armstrong v. Manzo, 380 U.S. 545, 552

(1965)).       The United States Supreme Court has specifically held that

“the Due Process Clauses protect civil litigants who seek recourse in the courts,

either as defendants hoping to protect their property or as plaintiffs attempting to

redress grievances.” Logan v. Zimmerman Brush Co., 455 U.S 422, 429 (1982).

Arguing by analogy to cases involving the right of access to courts,

Logan reaffirmed a long line of cases upholding the fundamental nature of the right

to be heard:

      [A]t least where interests of basic importance are involved, “absent a
      countervailing state interest of overriding significance, persons forced
      to settle their claims of right and duty through the judicial process
      must be given a meaningful opportunity to be heard.”

Logan, 455 U.S. at 430 n.5 (quoting Boddie, 401 U.S. at 377). The Supreme Court

has “described ‘the root requirement’ of the Due Process Clause as being ‘that an

individual be given an opportunity for a hearing before he is deprived of any

significant property interest.’” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,

542 (1985) (quoting Boddie, 401 U.S. 379).

   Baxter, like all United States citizens, is entitled to due process. The Order and

the TCEQ’s third-party lawsuit against Baxter demonstrate that the TCEQ seeks to

deprive Baxter of property – a certain portion of the potentially millions of dollars

it will cost to remediate the Voda Site. CR 1448. The amount of money Baxter




                                    – 10 –
may be liable for could be substantial. Therefore, before the TCEQ can deprive

Baxter of its property – in this case money – Baxter is entitled to due process.

   B. “Adequate” Notice is an Essential Element of Due Process
   In order to be afforded an opportunity to be heard, a party must have notice of

the opportunity. For this reason, the United States Supreme Court has repeatedly

recognized that the “essence of due process” requires that a person whose property

interests are in jeopardy receive both “‘notice of the case against him and an

opportunity to meet it.’” Mathews, 424 U.S. at 348 (quoting McGrath, 341 U.S. at

171–72 (Frankfurter, J., concurring)).

   Texas courts are equally adamant that due process demands adequate notice.

“[N]otice must be reasonably calculated to inform parties of proceedings which

may directly and adversely affect their legally protected interests.” Houston v.

Fore, 412 S.W.2d 35, 39 (Tex. 1967) (citing Walker v. City of Hutchison,

352 U.S. 112 (1956)); see, e.g., Valero South Texas Processing Co. v. Starr County

Appraisal District, 954 S.W.2d 863 (Tex. App.—San Antonio 1997, no writ)

(“In other words, to meet the constitutional requirement of due process, the notice

must be reasonably calculated, under all the circumstances, to apprise interested

parties of the pendency of the action and afford them an opportunity to present

their objections.”); see also Mosser v. Plano Three Venture, 893 S.W.2d 8, 12–13

(Tex. App.—Dallas 1994, no writ) (holding that it is a “fundamental requirement of



                                    – 11 –
due process” to provide sufficient notice that “apprise[s] interested parties of the

pendency of the action and afford them an opportunity to respond”); Langdale v.

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

(“A fundamental element of due process is adequate and reasonable notice of

proceedings.”); Williams v. Holley, 653 S.W.2d 639, 640 (Tex. App.—Waco 1983,

writ ref’d n.r.e.) (“The right of a party to be heard in a contested case is

fundamental and failure to give adequate notice of the trial setting constitutes lack

of due process.”); City of Waco v. Roddey, 613 S.W.2d 360, 365 (Tex. App.—

Waco 1981, no writ) (“‘Procedural due process’ requires notice that is reasonably

calculated to inform parties of proceedings that may directly and adversely affect

their legally protected interests.”).

   The Supreme Court has emphasized that “when notice is a person’s due . . .

[t]he means employed must be such as one desirous of actually informing the

absentee might reasonably adopt to accomplish it.” Mullane v. Central Hanover

Bank Trust Co., 339 U.S. 306, 315 (1950). In other words, notice is “adequate”

only when it “inform[s] the recipient of a procedure for resolving disputes and . . .

provide[s] a reasonable length of time to employ that procedure.” Bradford v.

Edelstein, 467 F. Supp. 1361, 1373 (S.D. Tex. 1979). Adequate notice should thus

“specify the nature of the facts and evidence” at issue in order to allow

“the affected party to prepare an informed response.” Hess & Clark, Division of


                                        – 12 –
Rhodia, Inc. v. Food and Drug Administration, 495 F.2d 975, 983 (D.C. Cir. 1974);

see also Wolff v. McDonnell, 418 U.S. 539, 564 (1974) (“[p]art of the function of

notice is to give the charged party a chance to marshall the facts in his defense and

to clarify what the charges are, in fact”). In addition, a party must be notified in

advance of the precise issues to be raised at a hearing. In re Ruffalo, 390 U.S. 544,

550 (1968); Navato v. Sletten, 560 F.2d 340 (8th Cir. 1977); North Alabama

Express, Inc. v. United States, 585 F.2d 783, 786 (5th Cir. 1978) (citing FCC v.

Pottsville Broadcasting Co., 309 U.S. 134, 143 (1940)).

   Notice cannot be adequate when it is misleading. Misleading notices thus

violate due process. Gonzalez v. Sullivan, 914 F.2d 1197, 1203 (9th Cir. 1990)

(holding that misleading notice violates due process because it “introduces a high

risk of error into the . . . decisionmaking process”); Baxter v. Colvin,

No. 14-CV-01306, 2014 WL 6985149, at *4 (N.D. Cal. Dec. 10, 2014) (citing to

Gonzalez, 914 F.2d at 1203, in holding that an “ambiguous and misleading” order

violates due process “because it did not clearly inform plaintiff how and whether

she could pursue her right to an oral hearing with the ALJ while also objecting to

his decision on its merits”); Butland v. Bowen, 673 F. Supp. 638, 641

(D. Mass. 1987) (“Notice that affirmatively misleads…clearly violates the

Constitutional guarantee of due process.”).

   Because due process is required by the United States Constitution, a party’s due


                                    – 13 –
process rights may be violated even when a state follows its own procedures.

Logan, 455 U.S. at 432 (“Each of our due process cases has recognized, either

explicitly or implicitly, that because ‘minimum [procedural] requirements [are] a

matter of federal law, they are not diminished by the fact that the State may have

specified its own procedures that it may deem adequate for determining the

preconditions to adverse official action.”); Peralta v. Heights Med. Ctr. Inc.,

485 U.S. 80, 86 (1988) (concluding that Texas bill-of-review requirements must

yield to constitutional demands of due process). “Although [a government agency]

is under no obligation to employ extraordinary means to notify an interested party,

when the government has in its possession information that would enable it to

provide   adequate    notice   to   an   interested   party,”   it   must   do   so.

Barrera-Montenegro v. United States, 74 F.3d 657, 660 (5th Cir. 1996)

(emphasis added). Assessing the adequacy of a particular form of notice requires

balancing the “interest of the State” against “the individual interest sought to be

protected by the Fourteenth Amendment.” Mullane, 339 U.S. at 314. Since 1976,

the test for determining whether notice is adequate to satisfy due process balances

three factors:   (1) the private interest at stake; (2) the risk of an erroneous

deprivation along with the value of additional notice; and (3) the burden imposed

on the government by the additional notice. Mathews, 424 U.S. at 335.




                                    – 14 –
   C. The Notice to Baxter Did Not Provide Baxter Sufficient Information
   Assuming for the sake of argument that the Order was the TCEQ’s attempt to

give notice to Baxter of the imminent deprivation of his property, the Order failed

to comport with due process in two ways. First, the Order did not provide Baxter

with notice of the right to appeal the Order and in fact was misleading on this point

thereby leaving Baxter with insufficient information with which to determine how

to fight the Order. Second, the Order did not provide Baxter with any information

about the extent of the property deprivation, thereby leaving Baxter with

insufficient information with which to determine whether to fight the Order.

   1. The TCEQ Did Not Provide Any Notice of the Right to Appeal the
      Order
   The TQEC’s communications to the Voda Superfund Site Potential Responsible

Persons (“PRPs”) such as Baxter were not reasonably calculated to inform them of

an opportunity for a hearing. The TCEQ failed to provide any indication that the

Order could be appealed or the consequences of not appealing, namely that Baxter

could be liable for millions of dollars of response costs and other financial

obligations. This failure violated Baxter’s due process right to an adequate notice.

   The cover letter to the Order (addressed to “Persons on the attached mailing

list”) consists of a two-sentence communication from the Chief Clerk of the

TCEQ.     CR 1813.     The first sentence merely indicates that a copy of the

administrative order is enclosed. Id. The second sentence states: “Should you



                                    – 15 –
have any questions, please contact … the Chief Clerk.” Id. Nothing in the cover

letter indicates that Baxter or the other PRPs have the right to be heard to challenge

the Order.

   Likewise, nothing in the 62–page Order itself even hints that a PRP has any

right to be heard in a challenge to the Order. CR 1733–94. Although the Order

contains references to various sections of the Texas Solid Waste Disposal Act, not

one of those references is to the section of that Act that explains how to challenge

the Order. Consequently, a PRP reading the entirety of the Order, its exhibits and

the cover letter would not acquire a single clue that a PRP has an opportunity to

appeal the Order.

   To the contrary, the Order is misleading in that it creates the impression that no

right to appeal exists.     A PRP reading the Order and getting to page 60

(and looking for some chance to object to the Order) might be encouraged by

§ XXXII, titled “Opportunity to Conference.”        CR 1792.     However, the final

sentence to section B of § XXXII makes clear that “The conference is not an

evidentiary hearing, does not constitute a proceeding to challenge this AO, and

does not give Agreeing Respondents or, if there are no Agreeing Respondents to

this AO, the Performing Parties the right to seek review of this AO.”              Id.

(emphasis added). Although this would have been one logical place to provide




                                    – 16 –
some notice to PRPs of the right to challenge the Order, no mention is made of a

PRP’s right to seek judicial review of the Order.

   The express denial of any “right to seek review” of the Order expressed in

§ XXXII is reinforced by § XXXV titled “Sovereign Immunity.”                 CR 1793.

The first sentence of § XXXV states: “The Parties hereby agree that nothing in

this AO waives the State of Texas’ sovereign immunity relating to suit, liability,

and the payment of damages.” CR 1793. To a PRP not familiar with section

361.321 of the Solid Waste Disposal Act, § XXXV suggests that Texas’ sovereign

immunity precludes any opportunity to sue the State of Texas in order to challenge

the Order. Section XXXV would have been another logical place to provide some

notice to PRPs of a PRP’s right to seek review of the Order. But the lay reader of

this clause is understandably left with the impression that taking on the State of

Texas, shielded as it is by sovereign immunity, would be against the law.

   It is undisputed that a party has a due process right to be notified of trial settings

or other procedural requirements. In such cases, a party’s rights to confront the

adverse party and to present evidence to a court are at stake – and adequate notice




                                     – 17 –
is essential for a party to activate those rights.3 In other words, “the right to a

hearing is meaningless without notice.” Walker, 352 U.S. at 114.

    The TCEQ’s failure to notify Baxter of the opportunity to be heard is directly

analogous. Receiving the Order, even by certified mail, is meaningless if nothing

in the Order, its exhibits, the cover letter or any other communication from the

TCEQ to the PRPs indicates that there is a right to appeal the Order.

See Memphis Light, Gas, & Water Div. v. Craft, 436 U.S. 1, 45 (1978) (holding that

notice to a utility’s customers was insufficient to satisfy due process because it was

not reasonably calculated to inform them of an opportunity for a hearing);

Bradford, 467 F. Supp. at 1373 (holding that for notice to be adequate, “it must

inform the recipient of a procedure for resolving disputes”).

    2. Constructive Notice of Appellate Rights Is Inadequate Given the
       Circumstances and Conditions of This Case
    Baxter acknowledges that the procedure for challenging the Order is contained

in sections 361.321 and 361.322 of the Texas Health and Safety Code.

As described above, however, the Order is affirmatively misleading. It informs the

3
 See L.B.L. Oil Co. v. Int’l Powers Serv., Inc., 777 S.W.2d 390, 391 (Tex. 1989) (notice of post-
answer default); Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex. 1988) (notice of trial setting);
Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986); Stubbs v. Stubbs, 685 S.W.2d 643, 645
(Tex. 1985) (required statement of facts not filed); Misium v. Misium, 902 S.W.2d 195
(Tex. App.—Eastland 1995, no writ); Moss v. Malone, 880 S.W.2d 45, 51 (Tex. App.—
Tyler 1994, writ denied); Tramco Enter., Inc. v. Indep. Am. Sav. Ass’n, 739 S.W.2d 944, 948
(Tex. App.—Fort Worth 1987, no writ) (required notice of trial setting); Chow v. Dole,
677 S.W.2d 220 (Tex. App.—Houston [1st Dist.] 1984, no writ) (required trial setting);
Rotello v. State, 492 S.W.2d 347, 349 (Tex. Civ. App.—Houston [1st Dist.] 1973, writ ref’d
n.r.e., per curiam).


                                         – 18 –
reader that the TCEQ has sovereign immunity, discusses an “Opportunity to

Conference” that that does not constitute a challenge to the Order, and otherwise

implies that the Order is non-appealable. CR 1792–93. The Order’s misleading

nature violated Baxter’s due process rights.

    While certain case law might seem to indicate that publically-available statutes

are sufficient to satisfy due process, the cases are distinguishable. For example, in

City of West Covina v. Perkins, 525 U.S. 234 (1999), the United States Supreme

Court stated that “in prior cases in which we have held that post-deprivation

state-law remedies were sufficient to satisfy the demands of due process and the

laws were public and available, we have not concluded that the State must provide

further information about those procedures.” Id. at 241. However, the holding in

West Covina was articulated in the context of the specific deprivation at issue in

that case, i.e., the deprivation of personal property 4 by the police for a criminal

investigation.     Id. at 240 (“When the police seize property for a criminal

investigation, however, due process does not require them to provide the owner

with notice of state-law remedies.”). West Covina is distinguishable, however,

because in that case the plaintiff was provided with specific information about his

remedy: “One of the detectives told Perkins he needed to obtain a court order

4
  In the West Covina case, “the police seized a number of items, including photos of Marsh
[the suspect in the homicide], an address book, a 12–gauge shotgun, a starter pistol, ammunition,
and $2,629 in cash.” In contrast, the owners of Baxter face the loss of their business (their only
source of income) and all of their property and savings.


                                         – 19 –
authorizing the property’s return.” Id. at 237. Here, Baxter was not provided with

any similar information about its rights or a potential remedy and instead was

misled about the availability of those remedies.

   The West Covina decision, while citing Mullane, did not refer to Mullane’s

“notice reasonably calculated” standard or even attempt to apply it. Id. at 240.

The United States Supreme Court has subsequently endorsed Mullane’s

“notice reasonably calculated” standard. See, e.g., Dusenbery v. United States,

534 U.S. 161 (2002) (three years after the West Covina decision); Jones v. Flowers,

547 U.S. 220 (2006) (four years after the West Covina decision). It is fair to

conclude that the “notice reasonably calculated, under all the circumstances”

standard remains the relevant and appropriate method of analysis.

   The Texas Supreme Court applied City of West Covina in another property

seizure case in City of Dallas v. VSC, LLC, 347 S.W. 3d 231 (Tex. 2011). In VSC,

the city’s police department seized a number of vehicles from VSC, a licensed

vehicle storage facility. Id. at 234. Several days after the initial seizure, VSC sued

the city, asserting a lien for fees related to the vehicles’ storage and contending that

the city’s actions amounted to an unconstitutional taking. The Texas Supreme

Court observed that “[t]he facts in this case mirror those in West Covina. The

police legally seized VSC’s property, and VSC was aware of what property was

seized and by whom.” Id. at 239. Describing the key factor in West Covina, the


                                     – 20 –
Texas Supreme Court observed that “[r]ather than seek a court order, Perkins sued

the officers and alleged that the remedies for the property’s return did not satisfy

due process.” Id. at 238–39. In other words, VSC, represented by counsel, took

immediate legal action but chose the wrong potential remedy. The Texas Supreme

Court concluded “that VSC’s actual notice of the vehicles’ seizures was

constitutionally sufficient and that it therefore had the burden of pursuing the

chapter 47 remedy” that the court held was proper. Id. at 238. Citing to the

Texas Code of Criminal Procedure, the court pointed out that “[e]ven if it failed to

participate in the chapter 47 proceedings, VSC might have had, in certain cases, a

second post-deprivation option available to it.”

   Unlike VSC, Baxter has no such second option. In stark contrast to the facts in

West Covina and VSC, Baxter, unrepresented by counsel, was confronted with a

lengthy, misleading Order that offered no information connecting Baxter to the

Voda Site and strongly implied that the Order was final and could not be

challenged.

   Due process is flexible and what constitutes adequate notice varies according to

the facts and circumstances of each case. Neither West Covina nor VSC hold that

statutory notice is always sufficient to satisfy due process. To the contrary, the

Texas Supreme Court acknowledged that the United States Supreme Court has

“recognized ‘the impossibility of setting up a rigid formula as to the kind of notice


                                    – 21 –
that must be given.’” Id. at 238 (quoting Walker, 352 U.S. at 115). Instead, the

“notice required will vary with circumstances and conditions.” Id.

   Adequate notice based on the facts and circumstances in West Covina and VSC

does not amount to adequate notice to Baxter. As discussed below, applying the

appropriate test, Baxter was entitled to notice of its appellate rights in the Order.

   3. The TCEQ Did Not Provide Adequate Notice of the Issues or
      Consequences
   In addition to notice of the right to be heard, due process requires that

“the notice as published must reasonably apprise any interested person of the issues

involved in the proceeding.”          Buckner Trucking, Inc. v. United States,

354 F. Supp. 1210, 1219 (S.D. Tex. 1973).           The Order contains a maze of

cross-references that would confuse anyone but an experienced Superfund attorney

but it does not contain any information about the extent of possible remedial costs.

In addition to failing to give adequate notice of the right to be heard, therefore, the

Order failed to give Baxter adequate notice of the issues or consequences

to Baxter.

   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.

The Order is confusing as to whether Baxter is even liable and, therefore, subject

to the Order’s financial obligations.             Section II.A lists the entities

(including Baxter) that are referred to as “potentially responsible parties” or


                                     – 22 –
“PRPs.” CR 1733–49. Then, without any supporting finding of fact or analysis,

all of the potentially responsible parties are suddenly and automatically

transformed into “responsible parties” by Conclusion of Law and Determination

III.A on page 25 of the Order. CR 1757. No explanation is given in the Order or

elsewhere as to how this transformation occurred. Although the Texas Solid Waste

Disposal Act does not define “potentially responsible parties,” the word “potential”

and its adverb form “potentially” have commonly accepted dictionary definitions

such as “existing in possibility, not in actuality . . . expressive of possibility; as a

potential use.” Webster’s New International Dictionary of the English Language

1932 (2nd ed. 1935).      Consequently, a PRP such as Baxter might reasonably

conclude that because it has been designated a “potentially responsible party”

something more must be done (such as a fact-finding hearing) to transform him

from a possible responsible party into an actual responsible party.

   Likewise, the Order fails to explain the possible scope of its consequences.

While it describes possible penalties for failing to comply, CR 1785–88, it does not

even hint at the possible financial exposure, let alone explain that Baxter could be

liable for millions of dollars in remedial obligations. Such notice did not provide

Baxter sufficient information of a potential deprivation of its property. A challenge

to the Order, assuming Baxter somehow knew that it was entitled to one, would be

enormously expensive to a small business. The only knowledge of the potential


                                     – 23 –
size of the loss faced by Baxter was with the TCEQ. Given this fact, and the

confusing nature of the Order, the TCEQ had a legal and constitutional duty to

explicitly describe the implications to Baxter to allow Baxter to decide whether to

challenge the Order.

   D. Because it Lacked Sufficient Information, the Order Violated Due
      Process and Was Void
   Assessing the adequacy of a particular form of notice requires balancing the

“interest of the State” against “the individual interest sought to be protected by the

Fourteenth Amendment.” Mullane, 339 U.S. at 314. Since 1976, the test for

determining whether notice is adequate to satisfy due process balances three

factors: (1) the private interest at stake; (2) the risk of an erroneous deprivation

along with the value of additional notice; and (3) the burden imposed on the

government by the additional notice. Mathews, 424 U.S. at 335.

   Applying the three-part balancing test to the situation before the Court reflects

that the notice to Baxter was not adequate to satisfy due process. With respect to

the criterion of the private interest at stake, the Order itself provides the evidence.

Although the Order is silent on the potential scope of harm, PRPs that are subject

to the Order face apparently unlimited financial costs, burdens, and risks.

In addition to the multi-million dollar remediation project at the Voda Petroleum

Superfund Site, those subject to the Order must pay for a long-term,

post construction insurance, bond or its equivalent. CR 1773–74. In addition, if


                                    – 24 –
permits are required to carry out the Order, the responsible parties must obtain

them and incur all consequent expenses. CR 1760.

   For Baxter, a very small, family-owned business, the financial obligations and

requirements set forth in the Order could be devastating. All of its meager assets

would be quickly consumed if it were compelled by the TCEQ to make even a

small portion of the expenditures required by the Order.

   The second factor consists of two components:           the risk of an erroneous

deprivation along with the value of additional notice. Mathews, 424 U.S. at 335.

The risk of an erroneous deprivation is demonstrated by Baxter’s motion for

summary judgment – Baxter did not generate any solid waste. CR 1464–67.

Baxter sold only valuable and useful fuel products to Voda as it has to all of its

other customers since 1983. CR 1473. In fact, Baxter sold products to Voda

Petroleum over other customers because Voda Petroleum paid higher prices. Id.

Based on federal cases interpreting federal environmental protection statutes and

regulations that are similar to the Texas Solid Waste Disposal Act, Baxter should

not be liable in any way for the remediation costs at the Voda Site and therefore

was erroneously held liable in the Order. See Vine St. LLC v. Borg Warner Corp.,

776 F.3d 312, 317–19 (5th Cir. 2015); see also Consolidation Coal Co. v.

Georgia Power Co., 781 F.3d 129, 147–49 (4th Cir. 2015).




                                   – 25 –
   The value of additional notice, that is, the value of a notice that would have

informed Baxter and the other PRPs of their right to appeal the Order and more

clearly informed them of the implications, is virtually self-evident. In addition to

securing a right to appeal the Order, additional (i.e. adequate) notice leading to a

hearing or other presentation of the issues and evidence would serve to clarify the

liability issues at an earlier stage of the proceedings.    This would avoid the

unnecessary expenditure of the Court’s resources – as well as the resources of the

parties, including the TCEQ.

   The third factor – the burden on the government of additional notice –

also weighs in Baxter’s favor because the TCEQ’s burden would be miniscule.

Consider the burden that would be imposed on the TCEQ by adding the following

five simple sentences to the cover letter to the Order:

      You have been found liable for response costs and other obligations as
      set forth in the attached Order. Those costs could exceed $_____.
      Pursuant to section 361.321 and/or 361.322 of the Texas Health and
      Safety Code, you have the right to appeal this Order. Your appeal
      must be filed with the TCEQ within 30 days of the date of this Order.
      Failure to file an appeal will adversely affect your right to challenge
      this Order.

These five sentences (or a similarly concise notice) would not even require a

second page for the TCEQ’s cover letter. The amount of additional ink required by

this notice would be negligible. Gonzalez, 914 F.2d at 1203 at 1203 (“Requiring

notices to accurately state how a claimant might appeal an initial decision does not



                                    – 26 –
impose a significant financial or administrative burden on the Secretary.”). For all

practical purposes this additional notice would require no additional expense or

effort by the TCEQ.

   Accordingly, the Mathews factors weigh in favor of Baxter. To comply with

due process, 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.

Because it did not, the Order was void. See Security State Bank & Trust v.

Bexar Cty., 397 S.W.3d 715, 723 (Tex. App.—San Antonio 2012, pet. denied);

see also N.Y. Life Ins. Co. v. Brown, 84 F.3d 137, 143 (5th Cir. 1996) (holding that

a judgment is void if a court that rendered it “acted in a manner inconsistent with

due process”); In re Guardianship of B.A.G., 794 S.W.2d 510, 513 (Tex. App.—

Corpus Christi 1990, no writ) (holding that a guardianship order entered in

violation of due process is void).

II. Because the Order is Void, it May be Collaterally Attacked at Any Time
    and the Trial Court Erred in Granting the TCEQ’s Plea to the
    Jurisdiction
    As Baxter demonstrated above, the Order is void because the lack of notice to

Baxter of appellate remedies and the scope of the financial consequences of the

Order violates Baxter’s due process rights. A void administrative agency’s order

can be collaterally attacked.        City of Celina v. Dynavest Joint Venture

253 S.W.3d 399, 403 (Tex. App.—Austin 2008, no pet.) rev’d on other grounds,



                                     – 27 –
Rusk State Hospital v. Black, 392 S.W.3d 88 (Tex. 2012). Void administrative

orders that violate a person’s due process rights should be subject to collateral

attacks, just like void judgments. See, e.g., In re E.R., 385 S.W.3d 552, 566

(Tex. 2012); Security State Bank and Trust, 397 S.W.3d at 723–24 (holding that a

judgment is void and subject to collateral attack where a person’s due process

rights were violated). 5

    No set procedure or statute of limitations exists for a collateral attack.

In re E.R., 385 S.W.3d at 566; Roman Catholic Diocese of Dallas v. County of

Dallas Tax Collector, 228 S.W.3d 475, 480 (Tex. App.—Dallas 2007, no pet.).

A statutory time frame to act in a direct attack does not have any bearing on a

collateral attack involving a due process violation – a collateral attack is

permissible even if done well beyond a statutory deadline.                       In re E.R.,

385 S.W.3d at 566 (“Despite the Legislature’s intent to expedite termination

proceedings, it cannot do so at the expense of a parent’s constitutional right to

notice.”). In other words, there was no time-bar to Baxter’s collateral attack.

5
   Baxter recognizes that some cases have described only two circumstances 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.


                                        – 28 –
   The only basis for the TCEQ’s plea to the jurisdiction was its claim that

Baxter’s summary judgment motion was an improper collateral attack on the

Order. CR 1587–92. Because Baxter was entitled to collaterally attack the void

Order at any time, there was nothing depriving the trial court of jurisdiction to hear

Baxter’s summary judgment motion. The trial court therefore erred in granting the

TCEQ’s plea to the jurisdiction.

                             CONCLUSION AND PRAYER
   “When notice is a person’s due, process which is a mere gesture is not due

process.” Mullane, U.S. at 657. In this case, although Baxter received the Order,

nothing in the Order, its cover letter, or its exhibits explained the scope of the

possible ramifications of the Order to Baxter and nothing in the Order, its cover

letter, or its exhibits even hinted that Baxter had a right to appeal the Order. To the

contrary, the Order suggested that it was final and not subject to challenge.

   This “process” does not even rise to the level of a mere gesture. The TCEQ’s

“process’ was not reasonably calculated to inform parties of proceedings that may

directly and    adversely      affect    their    legally     protected     interests.”

Houston, 412 S.W.2d at 35. Obviously, the TCEQ was not “desirous of actually

informing” Baxter and the other PRPs of their right to protect their interests.

It would be fundamentally unfair and a clear violation of the United States

Constitution for Baxter to be deprived of its property in such a manner.



                                    – 29 –
   Because the Order was void, Baxter’s motion for summary judgment was a

permissible collateral attack. Therefore, this Court should reverse the decision of

the district court granting the TCEQ’s plea to the jurisdiction and remand so that

the district court can consider Baxter’s summary judgment motion.

   WHEREFORE, Appellant Baxter Oil Service, Ltd. prays that the trial court’s order

granting Appellee’s plea to the jurisdiction be reversed and this case remanded for

further proceedings on Baxter’s summary judgment motion. Appellant prays for

such other relief to which it is entitled.

                                               Respectfully submitted,
                                               PULMAN, CAPPUCCIO,
                                               PULLEN, BENSON & JONES, LP
                                               2161 NW Military Highway, Suite 400
                                               San Antonio, Texas 78213
                                               www.pulmanlaw.com
                                               (210) 222-9494 Telephone
                                               (210) 892-1610 Facsimile
                                               By: /s/ Leslie Sara Hyman
                                                   Elliott S. Cappuccio
                                                   Texas State Bar No. 24008419
                                                   ecappuccio@pulmanlaw.com
                                                   Leslie Sara Hyman
                                                   Texas State Bar No. 00798274
                                                   lhyman@pulmanlaw.com
                                                   Etan Z. Tepperman
                                                   Texas State Bar No. 24088514
                                                   etepperman@pulmanlaw.com
                                         ATTORNEYS FOR APPELLANT




                                      – 30 –
                        CERTIFICATE OF COMPLIANCE
   Pursuant to Texas Rule of Appellate Procedure 9.4(i)((3), I certify that,

excluding those parts allowed to be excluded, the above and foregoing Brief of

Appellant contains 7,096 words.




                                           /s/ Leslie Sara Hyman
                                           Leslie Sara Hyman


                           CERTIFICATE OF SERVICE
   I certify that on the 25th day of September 2015, the foregoing Brief of

Appellant was served in accordance with the Texas Rules of Appellate Procedure

addressed as follows:

   Via Email to thomas.edwards@texasattorneygeneral.gov:
   Mr. Thomas H. Edwards
   Via Email to craig.pritzlaff@texasattorneygeneral.gov:
   Mr. Craig Pritzlaff
   Office of the Attorney General
   Environmental Protection Division
   P. O. Box. 12548, Capitol Station
   Austin, Texas 78711

                                           /s/ Leslie Sara Hyman
                                           Leslie Sara Hyman


                                  – 31 –
                           NO. 03-15-00446-CV

                               IN THE
                      COURT OF APPEALS FOR THE
                   THIRD COURT OF APPEALS DISTRICT
                           AUSTIN, TEXAS
                                   ______________

                            BAXTER OIL SERVICE, LTD.
                                  APPELLANT

                                     VERSUS

                 TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
                                 APPELLEE
                                   ______________

        APPEAL FROM THE 345TH JUDICIAL DISTRICT COURT, TRAVIS COUNTY, TEXAS
                               NO. D-1-GN-10-000772



                   APPENDIX TO BRIEF OF APPELLANT

             Tab          Description
             1            Order Granting the TCEQ’s Plea to
                          the Jurisdiction – CR 1952


             2            Fourteenth Amendment to the United States
                          Constitution

             3            February 12, 2010 Texas Commission on
                          Environmental Quality Administrative Order
                          – CR 1733-1812




{00050417}
Tab 1




Tab 1
                                 DC             BK15181 PG560
                                                                          Filed in The District Court
                                                                           of Travis County, Texas

                                                                                JUN 2 9 2015 NS
                                                                           At     I \"~t.,~M.
                             CAUSE NO, D-I-GN-lO-000772                    Velva L. Price, District Clerk



INRE:                                       §              IN THE DISTRICT COURT OF
                                            §
VODA PETROLEUM STATE                        §                   TRA VIS COUNTY, TEXAS
                                            §
SUPERFUND SITE UTIGA nON                    §                   345 th JUDICIAL DISTRICT

        ORDER GRANTING TCEQ'S PLEA TO THE JURISDICTION AS TO
              BAXTER'S MOTION FOR SUMMARY JUDGMENT

     On April 17, 2015, the Texas Commission on Environmental Quality (TCEQ),

Defendant, filed a Plea to the Jurisdiction seeking to dismiss the Motion for Summary

Judgment filed by Baxter Oil Service, Ltd. ("Baxter"). After considering the motion, the

pleadings, the documents on file and the arguments of counsel, the Court GRANTS the

TCEQ's plea.

     It is therefore ORDERED that the Motion for Summary Judgment filed by Baxter is

dismissed.         /?   ~.Jh

    SIGNED this   ~'cia; of _ _-3I1~~_IL_e
                                        ___                     2015.




                                            A~
                                            DISTRICT JUDGE




                                                                                                   1952
Tab 2




Tab 2
AMENDMENT XIV. CITIZENSHIP; PRIVILEGES AND..., USCA CONST Amend....




  United States Code Annotated
   Constitution of the United States
      Annotated
        Amendment XIV. Citizenship; Privileges and Immunities; Due Process; Equal Protection;
        Apportionment of Representation; Disqualification of Officers; Public Debt; Enforcement

                                           U.S.C.A. Const. Amend. XIV-Full Text

        AMENDMENT XIV. CITIZENSHIP; PRIVILEGES AND IMMUNITIES; DUE PROCESS; EQUAL
     PROTECTION; APPOINTMENT OF REPRESENTATION; DISQUALIFICATION OF OFFICERS; PUBLIC
                                   DEBT; ENFORCEMENT

                                                            Currentness




Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal protection of the laws.



Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the
whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice
of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial
officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being
twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or
other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens
shall bear to the whole number of male citizens twenty-one years of age in such State.



Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any
office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of
Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer
of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same,
or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such
disability.



Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of
pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United
States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United
States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal
and void.



Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

{00050429}              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                   1
AMENDMENT XIV. CITIZENSHIP; PRIVILEGES AND..., USCA CONST Amend....




     <Section 1 of this amendment is further displayed in separate documents according to subject matter,>


     <see USCA Const Amend. XIV, § 1-Citizens>


     <see USCA Const Amend. XIV, § 1-Privileges>


     <see USCA Const Amend. XIV, § 1-Due Proc>


     <see USCA Const Amend. XIV, § 1-Equal Protect>


     <sections 2 to 5 of this amendment are displayed as separate documents,>


     <see USCA Const Amend. XIV, § 2,>


     <see USCA Const Amend. XIV, § 3,>


     <see USCA Const Amend. XIV, § 4,>


     <see USCA Const Amend. XIV, § 5,>



U.S.C.A. Const. Amend. XIV-Full Text, USCA CONST Amend. XIV-Full Text
Current through P.L. 114-49 approved 8-7-2015
End of Document                                                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.




{00050429}              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                       2
Tab 3




Tab 3
               TEXAS COMMISSION ON ENVIRONMENTAL QUALITY




                            DOCKET NUMBER 2009-1706-SPF



        IN THE MATTER OF                        §              BEFORE THE
       THE SITE KNOWN AS                        §         TEXAS COMMISSION ON
      VODA PETROLEUM, INC.                      §        ENVIRONMENTAL QUALITY
      STATE SUPERFUND SITE                      §




                                 AN ADMINISTRATIVE ORDER

I.    Introduction

      On     FEbruary 10, 2010             , the Texas Commission on Environmental Quality
      ("Commission" or "TCEQ") considered the Executive Director's ("ED") allegations of the
      existence of a release or threat of release of solid wastes and/or hazardous substances into
      the environment on, at or from the VodaPetroleum, Inc. State Superfund Site ("Site") that
      poses an imminent and substantial endangerment to the public health and safety or the
      environment pursuant to the Solid Waste Disposal Act, TEX. HEALTH & SAFETY CODE,
      Chapter 361 (the "Act"), and the ED's requested relief including issuance of a Commission
      order to require persons responsible for such solid wastes or hazardous substances to perform
      the Work, including conducting the Remedial Activities, as authorized by Sections 361.188
      and 361.272 of the Act.

      After proper notice, the TCEQ makes the following Findings of Fact and Conclusions of
      Law:

II.   Findings of Fact

      A.     For purposes of this Administrative Order (,"AO"), TCEQ has identifie4 the
             following persons that are potentially responsible parties ('"PRPs") (at the solid .
             waste and/or hazardous substances at the Site:

                     AAMCO Transmissions

                     AR Oil Co

                     A T P Results Inc



                                           Exhibit A
                                                                                                      1733
AT&T

Adena Exploration fuc

Allstate Transmissions

Amber Refining fuc

American Airlines fuc

American Auto

American Marazzi Tile fuc

American Norit Company fuc

American Spill Control fuc

Andrews Motor & Transmission

Anvil Shop

Aratex Services fuc

Archer Auto

Arco Oil and Gas Corporation

Ark-La-Tex Waste Oil Co fuc

Ashco Production fuc

Auto Precision Motors fuc

Autohaus

Aviation Properties fuc

Axelson fuc

Aycock Oil Corporation

B B Wells Waste Oil fuc


           Page 2 - Voda Petroleum, Inc., State Superfund Site




                            Exhibit A
                                                                 1734
BE&KInc

Basil Oil Field Service Inc

Baxter Oil Service

Bayou State Oil Corporation

Ben E Keith Company

Ben Griffin Tractor Company

Big Three Industrial Gas Inc

Billy D Cox Truck Leasing Inc

Bishops Auto

Blake Janet DBA D & D Radiator & Muffler

Borden Inc

Bright Truck Leasing Corporation

Brookhollow Exon Car Care

Brown & Root Inc

Brown Express Inc

Brunson Oil

Brushy Creek Saltwater Disposal Inc

Buck Resources Inc

Bule Diamond

Burland Enterprises Inc

CPL Industries

Cabot Corporation


          Page 3 - Voda Petroleum, Inc., State Superfund Site




                          Exhibit A
                                                                1735
Can-Am Distributors and Warehouse me of Texas

Capacity of Texas Inc

Carraway Co

Carrier Air Conditioning

Cematco Inc

Central Power and Light Company

Central Texas Iron Works

Central Transfer & Storage Co

Champie Hill Mobil

Champion International Corporation

Channel Shipyard Company Inc

Chaparral Steel Company

Chief Oil & Chemical

Cities Service Company

Cities Service Pipe Line Company

City Motor Supply Inc

City of Dallas

City of Garland

City of Jefferson

City of Plano

City ofUniversity Park

Clarke Checks Inc


          Page 4 - Voda Petroleum, Inc., State Superfund Site




                            Exhibit A
                                                                1736
Clements Oil Corporation

Cliffs Automotive

Coker Automotive Center Inc

Collin County

Complete Auto Transit Inc

Continental Can Company USA Inc

Continental Car Wash

Continental Trailways Inc

Converter Shop Inc

Coors Distributor

Custom-Bilt Cabinet and Supply Inc

Custom-Crete Inc

Daljet Inc

Dallas Area Rapid Transit

Dallas Dressed Beef Company Inc

Dallas Lift Trucks Inc

Dallas Power & Light Company

Damson Gas Processing Corp

Davison Petroleum Products

Davison, T M

Delmar Disposal Co

Deloach Texaco


             Page 5 - Voda Petroleum, Inc., State Superfund Site




                              Exhibit A
                                                                   1737
Delta Distributors Inc

Diamond Shamrock

Dillingham & Smith Mechanical and Sheet Metal Contractors Inc

Dixie Oil

Donco Saltwater Disposal System

Double A & Y Corp

Dowell Schlumberger Incorporated

Dunlap-Swain

Durham Transportation Inc

ECIncorporated

East Texas Gas

Eastern ECC Company

Fina

The Firestone Tire and Rubber Company

First Interstate Bank of Dallas

Fort Sill

Fox & Jacobs

Franks Oil Service

Fred Jordan Inc

Fred Taylor GMC Truck Sales Inc

Freilich Howard DBA Quick Stop Brake & Muffler

Fruin-Colnon Corporation


            Page 6 - Voda Petrolewn, Inc., State Superfund Site




                             Exhibit A
                                                                  1738
G B Boots Smith Corporation

Gelco Truck Leasing Division Gelco Corporation

General Electric Company

General Telephone Company ofthe Southwest

General Tire Inc

General Truck Leasing Inc

Georgia-Pacific Corporation

Gifford-Hill Cement Compariy of Texas

Goff Willie

Grantham Oil Service

Greyhound Lines Inc

Grubbs Enterprises Ltd

Gulf States Oil & Refining Co

Gulf Stream Oil

H & H Oil Services

H & P Trans

Halliburton Energy Services Inc

Harris Bros Co

Harry Vowell Tank Trucks Inc

Hartsell Oil

Haynes Resources Inc

Hearne Ave Exxon


          Page 7 - Voda Petroleum, Inc., State Superfund Site




                           Exhibit A
                                                                1739
Herod Oil Inc

Hertz Penske Truck Leasing Inc

The Highland Pump Company Inc

Holloway Welding & Piping Co

Hunt Oil Company

Hydraulic Service and Supply Company

Industrial Lubricants Co

Industrial Solvents Gulf Division of Industrial Solvents Corporation

Ingersoll-Rand Company

Inland Container Corporation

International Electric Corporation

International Paper Company

J & E Die Casting Co Division of Cascade Die Casting Group Inc

James T Gentry Inc

Janks Texaco

Jeffco

J errys Waste Oil

John Crawford Firestone Inc

Johnson Controls Inc

Jones Environmental Inc

Joy Manufacturing Company

Jubilee Oil Service


          Page 8 - Voda Petroleum, Inc., State Superfund Site




                           Exhibit A
                                                                       1740
Juna Oil & Gas Co Inc

K & FOil & Gas Management mc

KRNN

Kayo Oil Company

Kellys Truck Tenninal Inc

Kennys Mobil

Kosar Frank DBA Rite Way Truck Rental

LA Transit

L D Baker Inc DBA Baker Gulf Service

L & J Recovery Ltd

LTV Energy Products Company

Lake Country Trucking mc

Lance Inc

Larry Gulledge Exxon

Las Colinas Service Center Inc

Lockheed Missiles & Space Company Inc

Lone Star Dodge Inc

Lone Star Logistics Inc

Long Mile Rubber Co

The Lubrizol Corporation

M Lipsitz & Co Inc

M & M Oil Salvage Inc


            Page 9 - Voda Petroleum, Inc., State Superfund Site




                             Exhibit A
                                                                  1741
                              MacMillan Bloedel Containers

                              Manvel Salt Water Disposal Company

                              Manville Sales Corporation

                              Marathon Battery Company

                              Martin-Decker

                              Mathews Trucking Company Inc

                              McAlister Construction Company

                              McBane Crude

                              McDonalds

                              Mega Lubricants Inc

                              Melton Truck Lines Inc

                              Metal Services Inc

                              Metro Aviation Inc

                              Metro Ford Truck Sales Inc

                              Millers Gulf

                              Minit Oil Change Inc

                             Mobil Oil Corporation

                             Modem Tire Service Inc

                             Mohawk Laboratories

                             Monsanto Company1

                             Moore James



I   Only to the extent that Solutia Inc. is not excluded under applicable federal bankruptcy law.

                                          Page 10 - Voda Petroleum, Inc., State Superfund Site




                                                            Exhibit A
                                                                                                    1742
Morgan Oil

Morgan, Troy L Jr

Mr Transmission

Murphy Brothers Service Center Inc

National Oilwell Inc

National Scientific Balloon Facility

National Supply Co

Naval Air Station Dallas

Navarro Petroleum Corp

Nobles Transmission

North Highland Mobil

Northwest Oil

Norwel Equipment Company

Nucor Corporation

Occidental Chemical Corporation

Oilwell Division of United States Steel Corporation

Olympic Fastening Systems Inc

On the Spot Oil Change

Owens Mobil

Oxendine, Von K DBA Oxendine Transmission

Oxy Cities Service NGL Inc

P N B Corporation


          Page 11 - Voda Petrolewn, Inc., State Superfund Site




                            Exhibit A
                                                                 1743
Pantera Crude Inc

Paramount Packaging Corporation Texas

Parawax

Parrott Oil Corp

Pauls Oils Service

Pearl Brewing Company

Pelican Energy of LA Inc

Pen Roy Oil of Odessa Inc

Pengo Industries Inc

Pennwalt Corporation

Pepsi Cola

Performance Friction Products Formerly Cohec Automotive Products
       Division of Coltec Industries Inc

Peterbilt Motors Company

Petro Chern Environmental Services Inc

Petroleum Distributors Inc

Petroleum Market Products

Petroleum Refiners Unlimited Inc

Petroleum Stripping Inc

Pipes Equipment Co Inc

Pitts

Pool Company

Post Office Vehicle Maintenance Facility

          Page 12 - Voda Petroleum, Inc., State Superfund Site




                           Exhibit A
                                                                   1744
Presbyterian Hospital of Dallas

Prestige Ford

Preston Management Company

Preston Oil Service

Production Operators Inc

R & C Petroleum Inc

R & K Auto Repair Inc

Ralph Wilson Plastics

Rayco Oil Company

Reed Tool Company

Reeves Oil Co Inc

Repetro Inc

Retail Graphics Printing Company

Rhodes Oil

Richards-Gebaur AFB

Roadway Express Inc

Robison Cecil

Rock Tenn Converting Company

Rockwall

Rollins Leasing Corp

Royle Container

Ruan Leasing Company


           Page 13 - Voda Petroleum, Inc., State Superfund Site




                             Exhibit A
                                                                  1745
Ryder Truck Rental Inc

SETI

SKI Oil Incorporated

The Sabine Mining Company

Safeway

Santos Radiator

Schepps Dairy Inc

Schlumberger Well Services Division of Schlumberger Technology
      Corporation

Sears Roebuck and Co

Senco Marketing

Service Oil Co

Servion Inc

Shell Oil Company

Shippers Car Line Inc

Shore Company Inc

Shreveport Truck Center

Sitton Oil

Snappy Lube Inc

Snow Coil Inc

Sooner Refining Co Inc

South Coast Products Inc

Southeast Tex-Pack Express Inc

             Page 14 - Voda Petroleum, Inc., State Superfund Site




                               Exhibit A
                                                                    1746
Southern Gulf

Southern Plastics Inc

Southland Sales Corporation

Southwest Disposal

Southwestern Bell Telephone Company

Southwestern Electric Power Company

Southwestern Petroleum Corporation

Specialty Oil

Sprague Electric Company

Star Solvents Inc

Steel City Crane Rental Inc

Stemco Inc

Steve D Thompson Trucking Inc

The Stroh Brewery Company

Sullivan Transfer & Storage

Summit White GMC Trucks Inc

Sun Engine Sales Inc

T E C Well Service Inc

Tan A Co

Tannehill Oil Products

Taylor Rental Center

Texaco Chemical Company


           Page 15 - Voda Petrolewn, Inc., State Superfund Site




                             Exhibit A
                                                                  1747
Texas Gas Transmission Corporation

Texas hIdustrial Disposal hIc

Texas hIdustries Inc

Texas Mill Supply- Longview hIc

Texas State Technical hIstitute Airport

Texas Utilities Generating Company

Thompson Trans

Toneys Garage

Trailways hIc

Tricon

Trinity hIdustries hIc

Triple L Disposal

Tri-State Oil Tools hIc

Triton Aviation Services Inc

Truckstops of America

Tuneup Masters hIc of Texas

Twin City Transmission Service hIc

Union Oil 76 Truck Stop

United Gas Pipe Line Company

United Press hItemational

United States Army Corps of Engineers Mat Sinking Unit

Vanguard Sales


          Page 16 - Voda Petroleum, Inc., State Superfund Site




                           Exhibit A
                                                                 1748
     Varo Inc

     Vault Oil & Gas

     Viking Freight Service Inc

     Voda Petroleum Inc

     Volvo White Truck Corporation

     W F B Tank Bottom Reclaiming Corp

     W W Waste Oil

     Warren Petroleum Company

     Westmoreland Joint Venture

     Western Auto Supply Company

     Westland Oil Company Inc

     Willamette Industries Inc

     W oodline Motor Freight

     Woods Operating Co Inc

     Wray Ford Inc

     Yates SWD Corp

     Young Chevrolet Inc

     Zavala Energy Inc

     and these parties

1.   are the owners or operators of the Site;

2.   owned or operated the Site at the time of processing, storage, or disposal of
     any solid waste;



                Page 17 - Voda Petroleum, Inc., State Superfund Site




                                 Exhibit A
                                                                                     1749
                                                                                          >
     3.     by contract, agreement, or otherwise, arranged to process, store, or dispose
            of, or arranged with a transporter for transport to process, store, or dispose of
            solid waste owned or possessed by the PRPs or by any other person or entity
            at the Site; or

     4.     accepted solid waste for transport to the Site as selected by the PRP.

B.   Reserved.

C.   The following PRPs entered into this AO as Agreeing Respondents but do not admit
     liability regarding the Site except for the purpose of enforcing this AO.

     There are no Agreeing Respondents.

D.   When ranked, the Site had a State Superfund Hazard Ranking System ("HRS") score
     of23.6.

E.   The portion ofthe Site used for ranking on the State Registry of Superfund Sites is
     described as follows:

     All that certain lot, tract or parcel of land being situated in the David Ferguson
     Survey, Gregg County, Texas and being a part of a 6.12 acre tract ofland conveyed
     from Chaco, Inc. to Ultra Oil, Inc. in deed recorded in Vol. 1212, Page 252, Deed
     Records, Gregg County, Texas and being more particularly described as follows:

     BEGINNING at a 12" x 12" fence comer post on the north ROW of Duncan Road,
     said point being the SE comer of a 50 acre tract conveyed from Charles McBride to
     Chaco, Inc. in deed recorded in VoL 1206, Page 83, Deed Records, Gregg County,
     Texas and also being the SE comer of the herein described tract;

     THENCE along the SBL ofthe above mentioned 6.12 acre tract, also being the north
     ROW of Duncan Road:

            N 89 deg. 47' 06" W, a distance of 199.02 feet;

            S 63 deg. 18' 26" W, a distance of57.72 feet;

            S 89 deg. 55' 54" W, a distance of 120.65 feet to a liz" iron rod for this most
            southerly SW comer, same being N 89 deg. 55' 54" E, 200.00 feet from the
            SW comer of said 6.12 acre tract;

     THENCE N 00 deg. 56' 53" W, a distance of200.00 feet to a liz" iron rod for comer;



                      Page 18 - Voda Petroleum, Inc., State Superfund Site




                                        Exhibit A
                                                                                                1750
     THENCE S 89 deg. 14' 07" W, a distance of 200.00 feet to a Yz" iron rod for this
     most northerly SW comer, same being located on the east ROW ofCharise Drive and
     the WBL of said 6.12 acre tract and being N 00 deg. 56' 53" W, 200.00 feet from the
     SW comer of same:

     THENCE N 00 deg. 56' 56" W, along the east ROW of said Charise Drive, a distance
     of 271.25 feet to a 5/8" iron rod for this NW comer, same being the NW comer of
     said 6.12 acre tract;

     THENCEN 89 deg. 03'E, along the NBL of said 6.12 acre tract, a distance of578.45
     feet to a 5/8" iron rod for this NE comer, same being the NE comer of said 6.12 acre
     tract;

     THENCE S 00 deg. 04' 55" E along the EBL of said 6.12 acre tract, a distance of
     452.78 feet to the Place of BEGINNING ofthe herein described tract and containing
     5.201 acres.

     The remainder, a contiguous 0.92 acre tract ofland, is described as follows:

     All that certain lot, tract or parcel of land being situated in the David Ferguson
     Survey, Gregg County, Texas and being a part of a 6.12 acre tract ofland conveyed
     from Chaco, Inc., to Ultra Oil, Inc., in deed recorded in Vol. 1212, page 252, Deed
     Records, Gregg County, Texas, and being more particularly described as follows:

     BEGINNING at a 5/8" iron rod set in the EBL of Charise Drive; THENCE North
     with the EBL ofCharise Drive 200 feet to a Yz" iron rod; THENCE North 89 deg. 14'
     07" E, 200 feet to Yz" iron rod for comer, THENCE S 00 deg. 56' 53" E, a distance
     of 200 feet to Yz" iron rod for comer: THENCE S 89 deg. 55' 54" W with the said
     SBL of said 6.12 acre tract, 200 feet to the point of BEGINNING, containg [sic] 1
     acre of land, more or less, together with all improvements situated thereon.

F.   The Site consists of the area listed in Paragraph E above. In addition, the Site
     includes any areas outside the area listed in Paragraph E above where as a result,
     either directly or indirectly, of a release of solid waste or hazardous substances from
     the area described in Paragraph E above, solid waste or hazardous substances have
     been deposited, stored, disposed of, or placed or have otherwise come to be located.

G.   The Site was proposed for listing on the State Registry of Superfund Sites in the
     Texas Register on November 17,2000. 25 Tex. Reg. 11594-95 (Nov. 17,2000).

H.   The Site historically has been used as a waste oil recycling facility.




                       Page 19 - Voda Petroleum, inc., State Superfund Site




                                        Exhibit A
                                                                                               1751
I    The Chemicals of Concern at the Site include those substances listed in Exhibit B.
     The substances listed in Exhibit B have been processed, deposited, stored, disposed
     of, or placed or have otherwise come to be located on the Site.

J.   The substances listed in Exhibit B have been documented in surface and subsurface
     soil and groundwater at the Site.

K.   The substances listed in Exhibit Bare:

     1.      substances designated under Section 311(b)(2)(A) of the Federal Water
             Pollution Control Act, as amended (33 United States Code ("U.S.C.") Section
             1321);

     2.     elements, compounds, mixtures, solutions, or substances designated under
            Section 102 ofthe Comprehensive Environmental Response, Compensation,
            and Liability Act ("CERCLA") (42 U.S.C. Section 9601 etseq., as amended);

     3.     hazardous wastes having the characteristics identified under or listed under
            Section 3001 of the Federal Solid Waste Disposal Act, as amended (42
            U.S.C. Section 6921), excluding wastes, the regulation of which has been
            suspended by Act of Congress;

     4.     toxic pollutants listed under Section 307(a) ofthe Federal Water Pollution
            Control Act (33 U.S.c. Section 1317);

     5.     hazardous air pollutants listed under Section 112 of the Federal Clean Air
            Act, as amended (42 U.S.C. Section 7412); or

     6.     any imminently hazardous chemical substances or mixtures with respect to
            which the administrator ofthe Environmental Protection Agency ("EPA") has
            taken action under Section 7 ofthe Toxic Substances Control Act (15 U.S.C.
            Section 2606).

L.   The substances listed in Exhibit B include the following: garbage; rubbish; refuse;
     sludge from a waste treatment plant, water supply treatment plant, or air pollution
     control facility; or other discarded material, including solid, liquid, semisolid, or
     contained gaseous material reSUlting from industrial, municipal, commercial, mining,
     and agricultural operations and from community and institutional activities, or
     hazardous substances, for the purposes of TEX. HEALTH & SAFETY CODE Sections
     361.271 through 361.277 and 361.343 through 361.345.

M.   The substances listed in Exhibit B are solid wastes or hazardous substances.



                       Page 20 - Voda Petrolewn, Inc., State Superfund Site




                                        Exhibit A
                                                                                             1752
       N.     Solid wastes or hazardous substances at the Site listed in Exhibit B are, or potentially
              are, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting,
              escaping, leaching, dumping, or disposing into the environment.

       O.     Potential pathways for human exposure to the solid wastes or hazardous substances
              listed in Exhibit B include incidental ingestion of, inhalation of or dermal exposure
              to surface and/or subsurface soil, and ingestion of or dermal exposure to
              groundwater.

       P.    Exposure to levels of dichloroethylene, cis-l ,2-; benzene; propylbenzene, n-; MTBE
             (methyl tertiary-butyl ether); tetrachloroethylene; toluene; trichloroethane, 1,1,1-;
             trichloroethylene; trimethylbenzene, 1,2,4-; trimethylbenzene, 1,3,5-; vinyl chloride;
             xylene, m-; xylene, 0-; xylene, p-; dichloroethylene 1,1-; and dichloroethane, 1,2-
             found at the Site poses an unacceptable carcinogenic risk or an unacceptable toxicity
             risk.

       Q.    The solid wastes or hazardous substances at the Site are not capable of being
             managed separately under the remedial action plan.

       R.    On November 6, 2000, the Commission provided written notice of the proposed
             listing of the Site on the State Registry to each PRP identified as of that date at the
             PRP's last known address.

       S.    On September 12, 2008, the Commission provided written notice of the public
             meeting and of the opportunity to comment on the proposed Remedy as specified in
             Sections 361.187(b) and (c) of the Act to each PRP identified as of that date at the
             PRP's last known address.

       T.    On September 12, 2008, each PRP identified as of that date was provided an
             opportunity to fully fund or perform the proposed Remedial Activities, as specified
             in Sections 361.187(d) and 361. 133(c) of the Act.

       U.    No voluntary actions have been undertaken at the Site by any PRPs.

       V.    The Remedy Selection Document ("RSD") for the Site is attached to this AO as
             Exhibit A.

       W.    The remedy adopted in Exhibit A is selected as the Remedy to be implemented in
             accordance with this AO.

III.   Conclusions of Law and Determinations

       A.    The PRPs listed in Section II (Findings of Fact) Paragraph A are responsible parties
             ("RPs") pursuant to Section 361.271 of the Act.

                                Page 21 - Voda Petroleum, Inc., State Superfund Site




                                                 Exhibit A
                                                                                                         1753
B.   Some ofthe substances referenced in Section II (Findings of Fact) Paragraph I, which
     are found at the Site, are hazardous substances as defined in Section 361.003(11) of
     the Act.

C.   Some ofthe substances referenced in Section II (Findings ofF act) Paragraph I, which
     are found at the Site, are solid wastes as defined in Section 361.003(34) ofthe Act.

D.   Hazardous substances were deposited, stored, disposed of, or placed or otherwise
     came to be located at the Site; and solid wastes were stored, processed, disposed of,
     or discarded at the Site.

E.   The Site is a facility as defined in Section 361.181(c) ofthe Act.

F.   The Site is a solid waste facility as defined in Section 361.003(36) ofthe Act.

G.   "Imminent and substantial endangerment" is defined by rule as follows: A danger is
     imminent if, given the entire circumstances surrounding each case, exposure of
     persons or the environment to hazardous substances is more likely than not to occur
     in the absence of preventive action. A danger is substantial if, given the current state
     of scientific knowledge, the harm to public health and safety or the environment
     which would result from exposure could cause adverse environmental or health
     effects. 30 TEX. ADMIN. CODE Section 335.342(9).

H.   There has been a release (as defined in Section 361.003(28) ofthe Act) or threatened
     release of hazardous substances or solid wastes into the environment at the Site that
     poses an imminent and substantial endangerment (as defined in 30 TEX. ADMIN.
     CODE Section 335.342(9» to the public health and safety or the environment; and
     therefore, the Site will be listed on the State Registry of Superfund Sites as per
     Section V (Order) Paragraph A.

1.   The release or threatened release of hazardous substances or solid wastes into the
     environment at or from the Site has not been proven to be divisible pursuant to
     Section 361.276 ofthe Act.

J.   The actions required by this AO are reasonable and necessary to protect the public
     health and safety or the environment.

K.   The Site is ineligible for listing on the National Priorities List ("NPL") because the
     HRS score was below 28.5.

L.   Funds from the Federal Government are unavailable for the Remedial Activities at
     this Site because it is ineligible for the NPL.



                       Page 22 - Voda Petroleum, Inc., State Superfund Site




                                        Exhibit A
                                                                                                1754
IV.   Exhibits and Definitions

      A.     The following exhibits are incorporated by reference into this AO:

             "Exhibit A"    Remedy Selection Document

             "Exhibit B"    List of Solid Wastes and Hazardous Substances at the Site

             "Exhibit C"    Field Sampling Plan Contents Outline

      B.     The following terms have the meaning set out below:

            "Agreeing Respondent"                The PRPs listed in Section II (Findings of Fact)
                                                 Paragraph C that fund or perform the Work and have
                                                 agreed to the terms and conditions of this AD as
                                                 evidenced by signing a consent form.
            "Chemicals of Concern"               Any chemical that has the potential to adversely affect
                                                 ecological or human receptors due to its concentration,
                                                 distribution, and mode oftoxicity.
            "Day"                                A calendar day.
            "Defaulting Performing               Any Performing Party that fails to comply with the
            Party"                               terms or conditions ofthis AD.
            "Demobilization"                    The dismantling and removal of all construction
                                                equipment from the Site.
            "Effective Date"                    The Day ten (10) Days after the issue date of this AO.
            "Executive Director                 The Executive Director of the TCEQ or a designee.
            (ED)"
            "include"                           Use of the term include, in all its forms, in this AD is
                                                intended to express an enlargement or illustrative
                                                application specifying a particular thing already
                                                included within the preceding general words. It is not
                                                used as a term of limitation.
            "Institutional Control"             A legal instrument which indicates the limitations on or
                                                the conditions governing use of the property which
                                                ensures protection of human health and the
                                                environment in accordance with 30 TEX. ADMIN. CODE
                                                Chapter 350 and as required by the Remedy.
            "Parties"                           Collectively, the Respondents and the Commission.

                                 Page 23 - Voda Petroleum, Inc., State Superfund Site




                                                   Exhibit A
                                                                                                           1755
"Performing Parties"             Collectively, the Agreeing Respondents and persons
                                 that did not enter into this AO but that fund or perform
                                 the Work.
"Post Construction               All Remedial Activities at the Site, subsequent to
Activities (PCA)"                issuance of the Approval ofRA Completion, required
                                 to complete the Remedial Activities in accordance with
                                 this AO.
"Post Construction Cost          An estimate of the cost to perform all of the PCA for as
Estimate"                        long as post construction activities are needed.
"Proj ect Manager"               The individual designated by the ED to oversee
                                 implementation of the Work and to coordinate
                                 communications with the Agreeing Respondents or, if
                                 there are no Agreeing Respondents to this AO, the
                                 Performing Parties.
"Remedial Action (RA)"          Those Remedial Activities, except for Post
                                Construction Activities, undertaken at the Site,
                                including on-site physical construction and any
                                required institutional controls, to implement the
                                Remedy. The areal extent of the RA is not limited to
                                the Site. It includes all suitable areas in proximity to
                                the Site necessary for implementation of the Remedial
                                Activities.
"Remedial Activities"           The RD, RA, PCA, and any other actions required to
                                implement and maintain the Remedy pursuant to the
                                RSD and 30 TEX. ADMIN. CODE Chapter 335,
                                Subchapter K and 30 TEX. ADMIN. CODE Chapter 350.
"Remedial Activities            The individual, company, or companies retained by the
Contractors"                    Agreeing Respondents, or if there are no Agreeing
                                Respondents to this AO, by the Performing Parties to
                                undertake any or all phases ofthe Remedial Activities.
                                Remedial Activities Contractors cannot assume the role
                                of any quality assurance official required by this AO.
"Remedial Design (RD)"          Those Remedial Activities during which engineering
                                plans and technical specifications are developed for the
                                Remedy.




                 Page 24 - Voda Petroleum, inc., State Superfund Site




                                   Exhibit A
                                                                                            1756
"Remediation Goals"               Cleanup standards or other measures of achievement of
                                  the goals of the Remedy, consistent with the Act, 30
                                  TEX. ADMIN. CODE Chapter 335, Subchapter K and 30
                                  TEX. ADMIN. CODE Chapter 350, determined by ED to
                                  be necessary at the Site to achieve and to maintain the
                                  Remedy.
"Remedy"                          The Remedy adopted for the Site in the Remedy
                                  Selection Document to clean up or control exposure at
                                  the Site in accordance with all applicable laws and
                                  regulations and to be implemented in accordance with
                                  this AO.     The Remedy includes all applicable
                                  requirements contained in the Act, 30 TEX. ADMIN.
                                  CODE Chapter 335, Subchapter K and 30 TEX. ADMIN.
                                  CODE Chapter 350.
"Remedy Selection                 The document that was developed for the Site, based
Document (RSD)"                   on Site specific information, that specifies the Remedy,
                                  and that was adopted by the ED and TCEQ after the
                                  opportunity for public review and comment.
"Responsible Parties"            The PRPs listed in Section II (Findings of Fact)
                                 Paragraph A.
"Respondents" ,                  Collectively, the Agreeing Respondents, the RPs, and
                                 the Performing Parties.
"Samples"                        Samples of environmental media taken pursuant to and
                                 in accordance with this AO.
"Sections"                       Those major divisions ofthis AO designated by Roman
                                 numerals.
"Site Coordinator"               The individual designated by the Agreeing
                                 Respondents, or if there are no Agreeing Respondents
                                 to this AD, the Performing Parties to oversee the
                                 Remedial Activities Contractors and the
                                 implementation of the Remedial Activities and to
                                 coordinate communications with the ED.
"Site Representative"            A person designated by the Project Manager that is
                                 authorized to oversee the Remedial Activities.




                  Page 25 - Voda Petroleum, Inc., State Superfund Site




                                   Exhibit A
                                                                                             1757
             "Substantial                     The point, as determined by the ED in his sole
             Completion"                      discretion, at which the W ork (or a specified part
                                              thereof) has been substantially completed in accordance
                                              with any work plans or documents required to be
                                              developed pursuant to this AD.
             "Work"                           All activities to be undertaken or performed m
                                              accordance with and as required by this AD.

V.   Order

     Therefore, the TCEQ orders:

     A.      The Site will be listed on the State Registry of Superfund Sites.

     B.      Reserved.

     C.      Respondents shall reimburse the Hazardous and Solid Waste Remediation Fee
             Account for all of the ED's costs of the Remedial Investigation ("RI") and the
             Feasibility Study ("FS"), including the oversight costs of these activities.
             Respondents shall reimburse the Hazardous and Solid Waste Fee Account for all
             uncompensated Pre-Remedial Investigation costs, including oversight costs ofthese
             activities.

             The RPs and any Defaulting Performing Parties shall reimburse the Hazardous and
             Solid Waste Remediation Fee Account for all costs incurred by the ED in
             implementing and in overseeing the Work and for any costs incurred by the ED for
             activities other than the RI and FS to the extent that such costs have not been paid.

             Reimbursement is to be made within forty-five (45) Days after the ED transmits a
             Demand Letter stating the amount owed. Payment is to be paid by cashiers check or
             money order. All payments and accompanying letters or documentation should
             contain the following information: "Voda Petroleum, Inc. State Superfund Site,"
             "Cost Recovery Funds for the Hazardous and Solid Waste Remediation Fee Account
             (Fund 550) ofthe State of Texas," "PCA Code 50482," "Docket Number 2009-1706-
             SPF," and "TCEQ Project Manager, Carol Boucher, P.G." All payments and
             accompanying letters or documentation should be mailed to: Cashier's Office, MC-
             214, TCEQ, Re: VodaPetroleum, Inc. State Superfund Site, P.O. Box 13088, Austin,
             TX 78711-3088. All checks and money orders shall be payable to the "Texas
             Commission on Environmental Quality," or "TCEQ." The requirement to make such
             payments will survive the termination ofthis AD in accordance with Section XXXIII
             (Termination of the Administrative Order).



                               Page 26· Voda Petroleum, Inc., State Superfund Site




                                                Exhibit A
                                                                                                        1758
D.   This AO applies to and is binding upon Respondents, their agents, successors, and
     assigns. Respondents are jointly and severally responsible for carrying out the Work.
     Perfonnance of any or all of the Work by the Perfonning Parties or Agreeing
     Respondents shall not excuse any other Respondent from such perfonnance. Upon
     perfonnance by any Respondent of Remedial Activities, either alone or in
     conjunction with other Perfonning Parties, such Respondent shall, from such
     perfonnance forward, become a Perfonning Party. Such perfonnance by a
     Respondent of some ofthe Remedial Activities does not excuse the Respondent from
     perfonnance of those Remedial Activities that took place prior to the Respondent
     becoming a Perfonning Party or any other preexisting requirement of this AO. No
     change in the ownership or corporate status and no acquisition of a Respondent will
     alter its respective responsibilities under this AO.

E.   Respondents that own or lease real property at the Site shall provide a copy of this
     AO to all of their lessees or sub lessees of the Site until such time as this AO is
     tenninated in accordance with Section XXXIII (Termination of the Administrative
     Order) and to any prospective owners or successors before all or substantially all
     property rights, stock, or assets are transferred.

F.   Respondents shall provide a copy of this AO to all cOl1tractors, subcontractors,
     laboratories, and consultants retained by Respondents to perfonn any or all of the
     Work within thirty (30) Days after the Effective Date or on the date such services are
     retained, whichever date occurs later. Notwithstanding the terms of any contract,
     Respondents remain responsible for compliance with this AO and for ensuring that
     their contractors and agents comply with this AO.

G.   Within forty-five (45) Days after the Effective Date each Respondent that owns real
     property at the Site shall record a copy or copies ofthis AO, with all exhibits, in the
     appropriate office where land ownership and transfer records are filed or recorded,
     and shall ensure that the recording ofthis AO is properly indexed to each and every
     property comprising any part or all of the Site so as to provide notice to third parties
     of the issuance and terms of this AO with respect to those properties. Each
     Respondent that owns real property comprising all or any part ofthe Site shall, within
     sixty (60) Days after the Effective Date, send notice of such recording and indexing
     to the ED. The obligations and restrictions of this AO run with the land and are
     binding upon any and all persons who acquire any interest in any real property
     comprising all or any part ofthe Site.

     Not later than ninety (90) Days before any transfer of any property interest in any
     property included within the Site and in accordance with Section XII (Notices and
     Submittals) Respondents that own or lease such real property shall submit the
     transfer documents to the ED.



                       Page 27 - Voda Petroleum, Inc., State Superfund Site




                                        Exhibit A
                                                                                                1759
H.   In accordance with Section 361.1855 ofthe Act and for the purpose of selecting the
     Remedy, the ED has selected commercial/industrial as the appropriate land use for
     the Site. Any change in use of any or all of the Site must comply with Section
     361.190 ofthe Act.

1.   A qualified Remedial Activities Contractor shall direct and supervise all aspects of
     the Remedial Activities. Within ten (10) Days after the Effective Date each
     Respondent that is not an Agreeing Respondent shall notify the ED of its intent to
     perform the Work.

     In addition to fulfilling the requirements of Section VIII (Project Manager/Site
     Coordinator) Paragraph C, within ten (10) Days after the Effective Date, Agreeing
     Respondents or, if there are no Agreeing Respondents, Performing Parties shall
     notifY the ED in writing of the name, title, qualifications, relevant licenses, and
     permits ofthe Site Coordinator and Remedial Activities Contractor proposed to be
     used in carrying out the Remedial Activities. The Agreeing Respondents shall
     demonstrate or, ifthere are no Agreeing Respondents, the Performing Parties shall
     demonstrate that each proposed Remedial Activities Contractor has any licenses
     necessary to do business in the State of Texas and permits necessary to perform any
     or all ofthe Remedial Activities. If at any time the Agreeing Respondents or, ifthere
     are no Agreeing Respondents, Performing Parties propose to use a different Remedial
     Activities Contractor, the Agreeing Respondents or Performing Parties, as
     appropriate, shall notifY the ED before the new Remedial Activities Contractor
     performs any of the Remedial Activities. The Agreeing Respondents' Site
     Coordinator shall be the Project Manager's and Site Representative's point of
     contact for all Performing Parties. All Performing Parties must coordinate with and
     cooperate with any Agreeing Respondents in the performance of any and all of the
     Work.

J.   The Remedy may be modified as specified in 30 TEX. ADMIN. CODE Section
     335.349. Except as specified in the previous sentence and in Section xvrn
     (Extension of Deadlines), the terms of this AO maybe amended upon approval by
     the Commission after notice to all Respondents.

K.   Respondents shall provide all the necessary information and assistance for TCEQ's
     Community Relations personnel to implement the Community Relations Plan.

L.   All ED-approved final submittals, documents, plans, and reports required to be
     developed and approved by the ED pursuant to this AO will be incorporated in and
     enforceable under this AO.

M.   In complying with this AO, Respondents shall at all times comply with the
     requirements of the Act and 30 TEX. ADMIN. CODE Chapter 335, Subchapter K and
     30 TEX. ADMIN. CODE Chapter 350, as applicable.

                       Page 28 - Voda Petroleum, Inc., State Superfund Site




                                        Exhibit A
                                                                                             1760
VI.   Remedial Activities

      A.     The Respondents shall undertake the Remedial Activities in the following phases:

             Remedial Design ("RD");

             Remedial Action ("RA"); and

             Post Construction Activity ("PCA").

            The ED may, in his sole discretion, waive, in writing, a requirement to submit any
            report, submittal, document or plan otherwise required to be submitted by this AO.

      B.     Remedial Design

             1.     Not later than ten (10) Days after the Effective Date, Respondents shall
                    submit a Design Concept Memorandum ("DCM") to the ED for review,
                    comment, and approval. Respondents must submit a DCM that includes:

                    a.      Description of key performance and design criteria for the Remedy
                            necessary to meet the requirements of the Remedy Selection
                            Document;

                    b.      Identification of all significant design options that may be considered
                            by the design professional to meet the required performance and
                            design criteria and the proposed option( s) to meet those criteria; and,

                    c.      Identification ofpotential problems and umesolved issues which may
                            affect the timely completion of the RD, RA and PCA, and proposed
                            solutions to those problems.

            2.      Within thirty (30) Days after the ED approves the DCM, Respondents shall:

                    a.      Obtain written landowner consent for any institutional control to be
                            placed on the land records for any or all ofthe Site as required by this
                            AO or by TCEQ rule and submit a copy ofthe consent to the ED; and

                   b.       Submit a Preliminary RD to the ED for review, comment, and
                            approval.

            3.      The Respondents shall submit a Preliminary RD that meets the requirements
                    as set forth in this Section and consists of a 30% completion of all sections
                    ofthe following RD submittals:


                              Page 29 - Voda Petroleum, Inc., State Superfund Site




                                               Exhibit A
                                                                                                       1761
     RA Schedule;

     RA Field Sampling Plan ("RA FSP");

     Remedial Action Construction Quality Assurance Project Plan ("RA C-
     QAPP");

     RA Plans and Specifications;

     RA Health and Safety Plan ("RA HASP"); and

     Post Construction Activity Plan ("PCA Plan").

4.   The RA Schedule will describe the sequence, dependency on other activities,
     and duration of each activity to be conducted during the RA including Project
     Milestones (which will be subject to the provisions of Section XXI
     (Stipulated Penalties), Paragraph D) and the specific mobilization date to
     begin the RA.

5.   The RA Sampling and Analysis Plan (RA SAP) and RA C-QAPP will
     describe the means of assuring quality during the RA and will specify a
     quality assurance official ("Respondent QA Official"), independent of the
     RA Contractors, to conduct a quality assurance program during the RA.

     a.     The RA SAP will be comprised of the RA FSP and the "Texas
            Commission on Environmental Quality Superfund Cleanup Section,
            Remediation Division, Quality Assurance Project Plan for the
            Superfund Program" (Program QAPP) which is most current as ofthe
            Effective Date ofthis AO. The RA SAP will address sampling and
            analysis relating to environmental parameters which may present
            toxic risk to human health or the environment. Respondents and their
            contractors and subcontractors, including analytical laboratories, shall
            strictly adhere to all requirements of the approved RA SAP.

     h.     The Program QAPP text will not be altered. Alterations to the
            Program QAPP necessitated byproject specific circumstances will be
            effected by appropriate notation in Section 8.0 "Exceptions,
            Additions and Changes to the Program QAPP" of the RA FSP.

     c.     The RA FSP will include:

            i)          All data required by the Program QAPP and the contents
                        outline attached as Exhibit C to this AO;


                 Page 30 - Voda Petroiewn, Inc., State Superfund Site




                                  Exhibit A
                                                                                       1762
     ii)           Data Quality Objectives ("DQO's") which provide for the
                   collection and analysis of a sufficient quantity and quality of
                   data to demonstrate attainment ofthe Remediation Goals and
                   to demonstrate protection of off-site receptors from exposure
                   to Chemicals of Concern during the RA; DQO's will be
                   developed in accordance with EPA "Guidance for the Data
                   Quality Objectives Process, EPA QAlG-4"; and

     iii)         A perimeter air monitoring plan including the action levels
                  necessary to protect off-site receptors from exposure to the
                  Chemicals of Concern; the Chemicals of Concern to be
                  sampled; the kinds of sampling techniques to be used to
                  sample; the number, type, and location of monitors; the
                  calibration methods and schedule; and the sampling and
                  reporting frequency.

d.   In regard to laboratories and laboratory analytical work, Respondents
     shall:

     i)           Ensure that all contracts with laboratories utilized by
                  Respondents for analysis of Samples provide for access to
                  those laboratories by the ED's personnel and the ED's auth-
                  orized representatives to assure the accuracy of laboratory
                  results related to the Site.

     ii)          Ensure that each laboratory it may use is qualified to conduct
                  the proposed work. This includes use of methods and
                  analytical protocols for the Chemicals of Concern in the
                  media of interest within detection and quantitation limits
                  consistent with both QAlQC procedures and approved DQOs
                  for the site. The Respondent QA Official shall provide written
                  certification that it has reviewed the laboratory's Quality
                  Assurance Plan and capabilities and has determined that:

                  (a)         The laboratory has a documented quality assurance
                              program in place that is generally consistent with
                              National Environmental Laboratory Accreditation
                              Conference (NELAC) standards;

                  (b)         The laboratory has demonstrated and documented
                              proficiency with each sample preparation and
                              determinative combination to be used on the project;



           Page 31 - Voda Petroleum, Inc., State Superfund Site




              Exhibit A
                                                                           1763
                          (c)         The laboratory has documented standard operating
                                      procedures for each of the methods required for the
                                      proj ect; and,

                          (d)         The laboratory has the capability of meeting the
                                      analytical objectives for the project.

                          A table which presents the laboratory's method detection
                          limits and quantitation limits and the preliminary remediation
                          goal for each analyte of concern, and a table that presents the
                          laboratory's control limits for quality control parameters, i.e.,
                          surrogates, matrix spike/matrix spike duplicate samples, and
                          laboratory control samples must be submitted along with the
                          certification letter and must be submitted attached or inserted
                          into the RA FSP.

            iii)         Ensure that all laboratories used for analysis of Samples are
                         acceptable to the ED. A laboratory may be deemed
                         unacceptable for any ofthe following reasons:

                         (a)          repeated or numerous deficiencies found in the
                                      laboratory quality assurance program during the ED's
                                      or EPA's laboratory inspections;

                          (b)         repeated or numerous deficiencies     III   laboratory
                                      performance;

                         (c)          debarment by EP A; or

                         (d)          failure to comply with any requirement or criteria of
                                      the Program QAPP or this AO.

            iv)          Ensure that all data submitted to the agency is produced by
                         laboratories accredited by TCEQ according to 30 TEX.
                         ADMIN. CODE Chapter 25 (relating to Environmental Testing
                         Laboratory Accreditation and Certification) Subchapters A
                         andB.

6.   The RA C-QAPP will describe the activities necessary to ensure that the
     Remedy is constructed to meet or exceed all design criteria, plans,
     specifications, and all applicable Remediation Goals. The RA C-QAPP will
     address sampling and analysis relating to physical properties of constructed
     engineered controls which must meet specified criteria to ensure the long-
     term performance of those features (e.g. physical soil properties of soil

                  Page 32 - Voda Petroleum, Inc., State Superfund Site




                                   Exhibit A
                                                                                               1764
     backfill or constructed clay caps, physical properties of geotextiles and liner
     materials, leak testing of piping systems and containment vessels, etc.). At a
     minimum, the RA C-QAPP will include the following elements:

     a.     The responsibility and authority of organizations and key personnel
            involved in designing and constructing the RA;

     b.     The qualifications ofthe Respondent QA Officiales) and supporting
            inspection personnel;

     c.     The observations and tests that will be used to ensure that the
            construction meets or exceeds all design criteria, plans and
            specifications and all applicable Remediation Goals;

     d.     The sampling activities, sample size, methods for determining
            locations, frequency of sampling, acceptance and rejection criteria,
            and methods for ensuring that corrective measures are implemented;
            and

     e.     Detailed reporting requirements.

7.   The RA Plans and Specifications will establish the sequences, procedures and
     requirements to be implemented at the Site including at a minimum:

     a.     Demolition activities including monitor well                   closure,
            decontamination, environmental controls, and disposal.

     b.     Excavation activities including: establishment of limits of initial
            excavation for surface and subsurface soils with provisions for field
            controls; excavation materials handling including stockpiling;
            excavation confmnation sampling; backfill procedures; air emissions
            control; stormwater management; cross-contamination prevention;
            and equipment and personnel decontamination procedures and
            facilities.

     c.     Estimated quantities of material to be excavated and estimated
            quantities of materials to be disposed of off-site.

     d.     Site restoration activities, including backfill materials, compaction,
            and final cover.

     e.     Plans including at a minimum:

            i)          Site plan;

                 Page 33 - Voda Petroleum, Inc., State Superfund Site




                                  Exhibit A
                                                                                       1765
             ii)           Demolition plan;

             iii)          Excavation plan, plan view;

             iv)           Excavation plan, sections;

             v)           Monitor well construction details;

             vi)          Final Site grading plan;

             vii)          Construction details; and

             viii)        All other plans and specifications necessary to describe
                          sequences, procedures, and requirements to conduct the
                          Remedial Activities in a manner protective of human health
                          and the environment.

8.   The RA HASP will specify the procedures that are sufficient to protect on-
     site personnel and the public from the physical, chemical and/or biological
     hazards of the site. The HASP will address all requirements of 29 CFR
     Chapter XVII - "Occupational Safety and Health Administration (OSHA),
     Department of Labor," 40 C.F.R. § 35.6015(a)(21) "Health and Safety Plan,"
     and all applicable safety regulations, ordinances and statutes pertaining to the
     safety of on-site personnel and the public. The HASP and any revisions or
     addenda will be reviewed and signed by a Board Certified Industrial
     Hygienist.

     The TCEQ relies on the Respondent in the preparation of an adequate HASP.
     However, TCEQ reserves the right to review and provide comments on the
     Respondent's HASP. If TCEQ provides comments, they constitute only
     general safety guidelines which are not intended to cause the Respondent to
     reduce the level of protection. Any language in the comments or in this AO
     which appears to give the TCEQ the right to direct or control the
     Respondent's means, methods and details of the Work shall be deemed to
     mean that the Respondent will follow TCEQ's desires only as to the results
     ofthe Work. The Respondent is solely responsible for preparing an adequate
     HASP, for complying with the RD and the applicable safety laws and
     regulations, for performing the Work in a safe manner and for protecting the
     health and safety of on-site personnel and the public. The Respondent shall
     address the TCEQ's comments and concerns and if necessary submit a
     revised HASP. TCEQ notation of "approval," "acceptance," or similar
     language in response to a HASP submittal for review shall not alter the
     responsibilities of the parties as described in this Section. In the event that
     TCEQ notes a HASP "approved" or "accepted" or uses similar language to

                   Page 34· Voda Petroleum, Inc., State Superfund Site




                                    Exhibit A
                                                                                        1766
     indicate that there are no further comments, such notation shall be deemed to
     mean only:

     We have reviewed your HASP under the AO provision reserving the right for
     TCEQ to review and provide comments constituting general safety guidelines
     (not intended to cause the Respondent to reduce the level ofprotection). The
     reviewer(s) might not be Board Certified Industrial Hygienist or any other
     type ofsafety professional. We have no comments (or further comments) at
     this time on your HASP. We recognize this HASP as your final HASP. Ifyou
     change this HASP you must submit a revision or addendum for review and
     potential comment in accordance with this AD.

     Do not rely on TCEQ review or comments (or lack thereof) on your HASP
     for any purposes.

     By telling you we have no comments (or further comments) we are not
     assuming responsibility for your means, methods, details or sequences, nor
     are we assuming any duty of protection to you, your employees, your
     subcontractors or suppliers, or their employees, or to any third party. Any
     language in the comments or in this AO which appears to give the TCEQ the
     right to direct or control your means, methods and details of the Work shall
     be deemed to mean that you will follow TCEQ's desires only as to the results
     ofthe Work. You are solely responsible for preparing and implementing an
     adequate HASP, for complying with the RD and the applicable safety
     regulations, ordinances and statutes, for peiforming the Work in a safe
     manner and for protecting the health and safety of on-site personnel and the
     public.

9.   The PCA Plan will describe all sequences, procedures and requirements for
     implementing the PCA. The peA Plan will, at a minimum, include the
     following:

     a.     A Post Construction Sampling and Analysis Plan ("PC SAP") and
            Post Construction Quality Assurance Project Plan ("PC-QAPP")
            meeting the criteria established herein for the RA SAP and RA C-
            QAPP but addressing all sampling and analyses relating to PCA;

     b.     Post Construction Plans and Specifications necessary to assure that
            the Remedial Activities attain and maintain the Remediation Goals;

     c.     A PCA Schedule describing the sequence, dependency on other
            activities, and duration of each activity to be conducted during the
            PCA including Project Milestones (which will be subject to Section


               Page 35 - Voda Petroleum, Inc., State Superfund Site




                                Exhibit A
                                                                                     1767
              XXI Stipulated Penalties Paragraph D), and the specific mobilization
              date to begin the PCA;

      d.      A Post Construction Cost Estimate providing an estimate for a
              qualified third party to perform all of the tasks necessary for post
              construction for as long as PCA are needed, in accordance with the
              PCA Schedule; and

      e.     A Post Construction Activities HASP ("PCA HASP") which meets
             all ofthe requirements specified above for the RA HASP but which
             is appropriate to protect on-site personnel and the public from any
             physical, chemical andlor biological hazards ofthe site relating to the
             Post Closure period and activities.

10.   Within thirty (30) Days after the ED provides written comments to the Site
      Coordinator on the Preliminary RD, Respondents shall submit a Pre-Final RD
      to the ED forreview, comment, and approval. The Pre-Final RD will consist
      of 95% RD submittals. Respondents shall address the ED's comments on
      the Preliminary RD and submit a summary note which clearly and explicitly
      indicates how each comment by the ED on the Preliminary RD has been
      satisfactorily addressed and which will also identify all other revisions or
      changes from the Preliminary RD.

11.   Within twenty (20) Days after the ED provides the Site Coordinator with the
      ED's written comments on the Pre-Final RD, Respondents shall submit the
      Final RD, prepared and sealed by a Professiomil Engineer registered in the
      State of Texas, to the ED. The Final RD will consist of 100% complete RD
      submittals except the PCA Plan. A Professional Engineer shall include a
      certification that the design was prepared to attain all Remediation Goals
      upon implementation. Respondents shall address the ED's comments on the
      Pre-Final RD and submit a summary note which clearly and explicitly
      indicates how each of the ED's comments on the Pre-Final RD has been
      satisfactorily addressed and which will also identify all other revisions or
      changes from the Pre-Final RD.

12.   The ED will notify the Site Coordinator of his approval or disapproval of the
      Final RD including written comments. Within fifteen (15) Days after the ED
      provides written comments to the Site Coordinator, Respondents shall
      resubmit the Final RD, in both clean and redline, strikeout format, with a
      summary note which clearly and explicitly indicates how each of the ED's
      comments on the previous draft of the Final RD has been satisfactorily
      addresse4 and which will also discuss all other revisions or changes from the
      previous draft of the Final RD.


                Page 36 - Voda Petroleum, Inc., State Superfund Site




                                 Exhibit A
                                                                                       1768
                 13.     The ED will notify the Site Coordinator of his approval or disapproval of
                         each resubmittal of the Final RD. Each resubmittal will be submitted as
                         specified in Paragraph 12 above. Disapproval of the first resubmittal, and
                         each subsequent resubmittal, is subj ect to assessment of stipulated penalties
                         in accordance with Section XXI (Stipulated Penalties).

                 14.     Upon the ED's approval, the documents comprising the Final RD will be
                         incorporated as requirements into and will be enforceable under this AD.

        C.       Remedial Action

                 1.      Respondents and Respondents' contractors and subcontractors shall not
                         mobilize to the Site until the Final RD is approved by the TCEQ. Under no
                         circumstance will mobilization occur prior to TCEQ approval of the RA
                         HASp. 2 The Respondents will be responsible for initiating, maintaining, and
                         supervising all safety precautions and programs required for the protection of
                         all persons who may be affected by the Work, the Work, and any property
                         which maybe affected by the Work.

                 2.      As soon as practicable after the award of any contract to ship solid wastes
                         and/or hazardous substances from the Site and prior to any such actual
                         shipment, Respondents shall submit to the Project Manager a written
                         certification containing all relevant information regarding such shipments.
                         The certification will include:

                         a.       The name and location ofthe facility to which the solid wastes and/or
                                  hazardous substances are to be shipped;

                         b.       The type and quantity ofthe solid wastes and/or hazardous substances
                                  to be shipped;

                         c.       The expected schedule for the shipment of the solid wastes and/or
                                  hazardous substances; and

                         d.       The method of transportation and the name, address, and phone
                                  number ofthe transporter.

                 3.      In addition, Respondents shall certify that:

                         a.      No enforcement order is currently imposed on any selected receiving
                                 facility or transporter by any regulating authorities;

       2TCEQ 's "approval" or "acceptance" of the HASP will be given the meaning as explained in Section VI
(Remedial Activities) Paragraph B.8.

                                     Page 37 - Voda Petroleum, Inc., State Superfund Site




                                                       Exhibit A
                                                                                                              1769
     b.      The selected receiving facility and transporter are permitted to accept
             the specific solid wastes and/or hazardous substances to be shipped
             from the Site by all appropriate regulating authorities; and

     c.      After appropriate inquiry, they have no knowledge that either the
             selected receiving facility or transporter is non-compliant with any
             federal, state, or local requirement.

4.   The ED may inspect the Remedial Activities and/or the Site at any time to
     evaluate compliance with this AO.

5.   At least ten (1O) Days prior to the expected date of achieving Substantial
     Completion ofthe RA,the Site Coordinator shall conduct a pre-Substantial
     Completion inspection and shall develop and submit to the ED a preliminary
     punch list identifying any nonconformance with the requirements of the RA
     Plans and Specifications.

6.   At the same time that the Performing Parties submit the Substantial
     Completion punch list, they shall schedule a Substantial Completion
     inspection by the ED. The Site Coordinator shall accompany the ED during
     the Substantial Completion inspection.

7.   Within 10 Days after the ED's on-site inspection, the Respondents shall
     submit to the ED in writing a revised punch list incorporating any
     deficiencies identified by the ED during the Substantial Completion
     inspection, indicating those deficiencies that are completely addressed and
     providing a proposed schedule and list of activities necessary to complete the
     RA. The ED will notify the Site Coordinator in writing of his approval or
     disapproval of the revised punch list.

     If the ED disapproves the revised punch list, the ED will provide written
     comments to the Site Coordinator. Within ten (10) Days after the ED
     provides written comments to the Site Coordinator on the revised punch list,
     Respondents shall submit a final punch list, in both clean and redline,
     strikeout format, with a summary note that clearly and explicitly indicates
     how each of the ED's comments on the revised punch list has been
     satisfactorily addressed. The ED will notify the Site Coordinator of his
     approval or disapproval ofthe final punch list with comments. If disapproved
     by the ED, within fifteen (IS) Days after the ED provides written comments,
     Respondents shall resubmit the final punch list. The ED will notify the Site
     Coordinator of his approval or disapproval of each resubmittal of the final
     punch list. Disapproval of the first resubmittal and each subsequent
     resubmittal is subj ect to assessment of stipulated penalties in accordance with
     Section XXI (Stipulated Penalties).

               Page 38 - Voda Petroleum, Inc., State Superfund Site




                                Exhibit A
                                                                                        1770
8.    When Respondents believe that they have completed the RA, they shall
      submit a certification to the ED that the RA is complete. Ifthe ED identifies
      RA items to be corrected or completed, Respondents shall immediately
      correct or complete these items.

9.    Within forty five (45) Days after Respondents certify that the RA is complete,
      Respondents shall submit to the ED a draft RA Report, containing the
      following:

      a.     A certification from a Professional Engineer licensed in the State of
             Texas that the RA has been completed in compliance with the Final
             RD and this AO and that the RA is complete;

      b.     All data collected during the RA and documentation of compliance
             with the terms of the RA Quality Assurance Project Plan and the RA
             Construction Quality Assurance Plan;

      c.     Copies of waste manifests for all Class II, Class I, and hazardous
             wastes and substances disposed of off-site;

      d.     As-built drawings showing:

             i)           Areas and depths of excavation, with verification sample
                          results by grid area;

             ii)          Final site plan with topographic contours;

      e.     Progress photographs;

      f.     Proposed areas for soil and groundwater that will require land use
             restrictions and/or other deed notices, certifications, or restrictions;
             and,

      g.     Proposed language for any institutional controls in accordance with
             and as required by this AO and TCEQ rules.

10.   The ED will notify the Site Coordinator of his approval or disapproval ofthe
      draft RA Report. If the ED disapproves the draft RA Report, the ED will
      provide written comments to the Site Coordinator.

11.   Within fifteen (15) Days after the ED provides written comments to the Site
      Coordinator on the draft RA Report, Respondents shall submit a final RA
      Report, in both clean and redline, strikeout format, with a summary note
      which clearly and explicitly indicates how each ofthe ED's comments on the

                   Page 39 - Voda Petro!ewn, Inc., State Superfund Site




                                    Exhibit A
                                                                                        1771
      draft RA Report has been satisfactorily addressed and which also discusses
      all other revisions or changes from the draft RA Report.

12.   The ED will notify the Site Coordinator of his approval or disapproval ofthe
      final RA Report with comments.

13.   If disapproved by the ED, within fifteen (15) Days after the ED provides
      written comments, Respondents shall resubmit the RA Report as specified in
      Paragraph 11 above. Each resubmittal will also be submitted in accordance
      with Paragraph 11 above.

14.   The ED will notify the Site Coordinator of his approval or disapproval of
      each resubmittal of the final RA Report including written comments.
      Disapproval of the first resubmittal and each subsequent resubmittal· is
      subject to assessment of stipulated penalties in accordance with Section XXI
      (Stipulated Penalties).

15.   Within thirty (30) Days after approval of the final RA Report and after
      obtaining the required written landowner consent in accordance with
      Paragraph B.2 of this Section, Respondents shall:

      a.     record a copy or copies of any required institutional controls in
             compliance with the requirements found in 30 TEX. ADMIN. CODE
             Chapter 350.111 in the appropriate local or county office where land
             ownership and transfer records are filed or recorded;

      b.     ensure that the recording ofthese documents is properly indexed and
             recorded to each and every property at the Site in the appropriate
             office where land ownership and transfer records are filed so as to
             provide notice to third parties concerning those properties; and

      c.     send evidence of such recording, landowner consent, and indexing to
             the ED.

16.   After he approves the finalRA Report, receives evidence of the filing of any
      institutional control from each property owner or other person as required by
      Section V (Order) Paragraph G, and determines that the financial assurance
      requirements of Paragraph E below have been satisfied, the ED will issue an
      Approval ofRA Completion to the Agreeing Respondents, or ifthere are no
      Agreeing Respondents to this AO, any Performing Parties.




                Page 40 - Voda Petroleum, Inc., State Superfund Site




                                 Exhibit A
                                                                                      1772
D.   Post Construction Activity

     1.     Concurrent with the submittal ofthe preliminary punch list for the Substantial
            Completion inspection, the Site Coordinator shall 1) submit a list of the
            name, title, qualifications, relevant licenses and permits of the Remedial
            Activities Contractors proposed to be used in carrying out any or all of the
            PCA and 2) submit to the ED a Revised PCA Plan.

     2.     The ED will notify the Site Coordinator of his approval or disapproval of the
            Revised PCA Plan including written comments to the Site Coordinator.

     3.     Within fifteen (15) Days after the ED provides written comments to the Site
            Coordinator, Respondents shall submit the Final PCA Plan, in both clean and
            redline, strikeout format, with a summary note which clearly and explicitly
            indicates how each of the ED's comments on the Revised PCA Plan has been
            satisfactorily addressed and which will also discuss all other revisions or
            changes from the Revised PCA Plan.

     4.     The ED will notify the Site Coordinator of his approval or disapproval ofthe
            submittal and each resubmittal ofthe Final PCA Plan. Each resubmittal will
            be submitted as specified in Paragraph 3 above. Disapproval of the first
            resubmittal and each subsequent resubmittal is subject to assessment of
            stipulated penalties in accordance with Section XXI (StipUlated Penalties).

     5.     Upon the ED's approval ofthe final PCA Plan, Respondents shall begin the
            PCA in accordance with the schedule included in the PCA Plan.

     6.     The Agreeing Respondent(s) shall submit a Five Year Review report to the
            TCEQ for TCEQ' s approval no later than five (5) years after the ED approves
            the Final Remedial Action for the Site. The Five Year Review report must
            be conducted in accordance with the U.S. Environmental Protection Agency's
            "Comprehensive Five-Year Review Guidance." The Agreeing Respondent(s)
            shall submit Five Year Review reports for the Site to the TCEQ every five (5)
            years unless and until the TCEQ approves cessation.

E.   Post Construction Financial Assurance

     1.     Respondents shall provide financial assurance in the minimum amount ofthe
            final Post Construction Cost Estimate and shall maintain such financial
            assurance for the full duration ofthe PCA. Within ten (10) Days ofthe ED's
            approval of the PCA Plan, Respondents shall submit a written proposal for
            providing financial assurance to the ED for approval.



                      Page 41 - Yoda Petroleum, Inc., State Superfund Site




                                       Exhibit A
                                                                                             1773
              2.      Subject to the ED's approval, financial assurance may be demonstrated by
                      one or a combination of the following mechanisms: letter of credit, surety
                      bond guaranteeing payment, surety bond guaranteeing performance, fully
                      funded trust, insurance, escrow account or other approved mechanism. Each
                      financial assurance document will be issued by an institution with the
                      authority to issue the document whose operations are regulated and examined
                      by a federal or state agency.

              3.      Within fifteen (15) Days after the ED provides written approval of
                      Respondents' proposed financial assurance mechanism to the Site
                      Coordinator, Respondents shall submit the necessary financial assurance
                      documents to the ED. The ED will notify the Site Coordinator of his
                      approval or disapproval ofthe financial assurance documents with comments.
                      If disapproved by the ED, within fifteen (15) Days after the ED provides
                      written comments to the Site Coordinator, Respondents shall resubmit the
                      financial assurance documents, in both clean and redline, strikeout fonnat,
                      with a summary note which clearly and explicitly indicates how each ofthe
                      ED's comments on the previous draft of the financial assurance documents
                      has been satisfactorily addressed and which will also discuss all other
                      revisions or changes from the previous draft of the financial assurance
                      documents.

              4.      The ED will notify the Site Coordinator of his approval or disapproval, with
                      comments, of each resubmittal ofthe financial assurance documents. Each
                      resubmittal will be submitted in accordance with Paragraph 3 above.
                      Disapproval of the first resubmittal and each subsequent resubmittal is
                      subj ect to assessment of stipulated penalties in accordance with Section XXI
                      (Stipulated Penalties).

VII.   Failure to Attain Remediation Goals or Findings of Significant Difference

       A.     If at any point in the Remedial Activities the Performing Parties conclude that the
              Remedial Activities as implemented in accordance with this AO will not attain the
              Remediation Goals, or ifthe Performing Parties find that conditions at the Site differ
              from those that form the basis of the RSD and significantly change the scope,
              performance or costs of the Remedial Activities, then the Performing Parties shall
              take the actions specified in this Section.

       B.     Within ten (10) Days after the Performing Parties initially determine that a failure to
              attain Remediation Goals or that a significant difference in the scope, performance
              or cost of the Remedial Activities as described in this Section exists, Performing
              Parties shall notify the ED of that determination with a description of its basis.



                                Page 42· Voda Petroleum, Inc., State Superfund Site




                                                 Exhibit A
                                                                                                        1774
C.   Not later than sixty (60) Days after the initial assertion of a failure to attain
     Remediation Goals or of a significant difference in the scope, performance or cost
     of the Remedial Activities, the Performing Parties shall submit a Failure Evaluation
     Report to the ED for his approval.

D.   The Performing Parties shall submit a Failure Evaluation Report that meets the
     requirements ofthis Section. The Failure Evaluation Report will include a discussion
     of the following: the data related to the failure to attain Remediation Goals or to the
     assertion of a significant difference, conclusions concerning all such data, and any
     known cause of the failure to attain Remediation Goals or of the significant
     difference, and a recommendation for any necessary additional studies. Data
     presented in the Failure Evaluation Report will comply with the DQOs.

E.   The ED will not consider the failure of a design element or remedial action that is not
     required by this AO to be the basis for a failure to attain the Remediation Goals.

F.   The ED will consider differences in the quantity or extent of contaminants as the
     basis for a determination of a significant difference only when such differences are
     so significant as to cause the Remedy not to be the lowest cost alternative that is
     technologically feasible and reliable and that effectively mitigates and minimizes
     damage to and provides adequate protection of the public health and safety or the
     environment.

G.   After receipt of the Failure Evaluation Report, the ED will notify the Site
     Coordinator of his approval or disapproval of the report with comments. If the ED
     determines that the basis of the Performing Parties' assertion of a failure to attain
     Remediation Goals or of a significant difference is valid, no applicable stipulated
     penalties will be imposed for missed deadlines subsequent to the Performing Parties'
     notification made in accordance with Paragraph B above, except for failure to submit
     documents pursuant to this Section. If the ED determines that the basis of a failure
     to attain Remediation Goals or of an assertion of a significant difference is not valid,
     the ED will direct that Remedial Activities continue and that the Performing Parties
     pay any applicable stipulated penalties for any missed deadlines.

H.   Unless the ED approves the Failure Evaluation Report and/or directs continuation of
     Remedial Activities, within thirty (30) Days after the ED provides written comments
     to the Site Coordinator, the Performing Parties shall resubmit the Failure Evaluation
     Report, in both clean and redline, strikeout format, with a summary note which
     clearly and explicitly indicates how each of the ED's comments on the previous draft
     ofthe Failure Evaluation Report has been satisfactorily addressed and which will also
     identify all other revisions or changes from the previous version of the Failure
     Evaluation Report.



                       Page 43 - Voda Petroleum, Inc., State Superfund Site




                                        Exhibit A
                                                                                                1775
        1.     The ED will notify the Site Coordinator of his approval or disapproval, with
               comments, of each resubmittal of the Failure Evaluation Report. Each resubmittal
               will be submitted in accordance with Paragraph H above. Disapproval of the first
               resubmittal and each subsequent resubmittal is subject to assessment of stipulated
               penalties in accordance with Section XXI (StipUlated Penalties).

        J.     Not later than ninety (90) Days after a determination by the ED that the Remedy will
               not attain the Remediation Goals or a significant difference exists, the Respondents
               shall submit to the ED for approval a written report evaluating alternatives to the
               Remedial Activities and may submit a proposal for such alternative Remedial
               Activities as may be necessary to achieve the Remediation Goals. Any proposed
               alternatives must comply with the remedy selection criteria contained in 30 TEX.
               ADMIN CODE Chapter 335, Subchapter K and 30 TEX. ADMIN. CODE Chapter 350.
               The Remedy may be modified, as stated in Section V (Order) Paragraph J, only as
               specified in 30 TEX. ADMIN. CODE Section 335.349.

        K.     In the event TCEQ determines that alternate or additional remedial actions are
               necessary because of the Remedy's failure, TCEQ may terminate this AO.

VIII.   Project Manager/Site Coordinator

        A.     Not later than the Effective Date, the ED will designate a Proj ect Manager to oversee
               implementation ofthe Work and to coordinate communication between the ED and
               the Agreeing Respondents or, ifthere are no Agreeing Respondents to this AO, the
               Performing Parties.

        B.    Respondents shall direct all communications regarding the Remedial Activities,
              whether written or oral, at a minimum, to the Project Manager or, if not available, the
              alternate Proj ect Manager.

        C.    In addition to fulfilling the requirements of Section V (Order) Paragraph I, within ten
              (10) Days after the Effective Date, the Agreeing Respondents or, if there are no
              Agreeing Respondents to this AO, the Performing Parties shall submit a written
              notice to the Project Manager containing the Site Coordinator's address, phone
              number and/or pager number at which he/she may be contacted at any time in case
              of emergency. The Site Coordinator shall notify the ED in writing at least seven (7)
              Days prior to the start date of any field activities associated with the Remedial
              Activities. All Performing Parties must coordinate with and cooperate with any
              Agreeing Respondents in the performance of any and all of the Work.

        D.    The Project Manager has the authority to require that the Remedial Activities are
              performed in accordance with all applicable statutes and regulations and with this AO
              and to require a cessation of the performance of any part or all of the Remedial
              Activities that:

                                 Page 44 - Voda Petroleum, Inc., State Superfund Site




                                                  Exhibit A
                                                                                                        1776
     1.      In the Proj ect Manager's opinion, may present or contribute to an imminent
             and substantial endangerment to public health, welfare, or the environment
             because of an actual or threatened release of solid wastes or hazardous
             substances from the Site; or

     2.      In the Proj ect Manager's opinion, is not in conformance with any work plan
             developed in accordance with this AO; or

     3.      In the Project Manager's opinion, is a violation of any work plan developed
             in accordance with this AO, HASP, or RA Quality Assurance Project Plan.

E.   Within 24 hours after the Project Manager issues an oral order to halt any or all ofthe
     Remedial Activities, if time permits, the Project Manager will provide a brief
     explanation ofthe basis for the order. As soon as possible, but in any event no more
     than fourteen (14) Days after the initial order to halt any or all of the Remedial
     Activities, the Project Manager will provide a written explanation ofthe basis for the
     order to halt any or all of the Remedial Activities to the Site Coordinator. The
     Remedial Activities may be resumed only after the basis for the order to halt any or
     all of the Remedial Activities has been corrected and instructions to proceed have
     been provided to the Agreeing Respondents or, ifthere are no Agreeing Respondents
     to this AO, the Performing Parties by the Project Manager. All additional costs
     associated with the cessation of any or all of the Remedial Activities will be borne
     by Respondents.

F.   During the RD and RA, the Project Manager and Site Coordinator shall hold
     meetings at least once per month to review the progress and details ofthe Remedial
     Activities and to review and resolve any discrepancies in data. At the ED's
     discretion, these meetings may be held by telephone. At least seven (7) Days prior
     to each meeting, the Performing Parties shall deliver an agenda for the meeting and
     any documents to be discussed to the Project Manager.

G.   The ED and the Agreeing Respondents or, ifthere are no Agreeing Respondents to
     this AO, the Performing Parties may change their respective Project Manager,
     Alternate Project Manager, or Site Coordinator by written notice to each other of the
     name, address, and telephone number ofthe new Proj ect Manager, Alternate Proj ect
     Manager, or Site Coordinator seven (7) Days prior to the change, or if seven (7) Days
     notice is not feasible, as soon as possible.

H.   The Proj ect Manager may assign other persons, including other TCEQ employees or
     contractors, to serve as a Site Representative and may temporarily delegate her or his
     responsibilities to such Site Representative. The Project Manager will notify the Site
     Coordinator orally or in writing of such delegation.



                       Page 45 - Voda Petroleum, Inc., State Superfund Site




                                        Exhibit A
                                                                                               1777
IX.   Endangennent and Immediate Threat

      A.     In the event of any action or occurrence during the perfonnance of the Remedial
             Activities which causes or threatens a release of a solid waste or hazardous substance
             or which may present an immediate threat to public health or welfare or the
             environment, Respondents shall immediately take all appropriate action to prevent,
             abate, or minimize such release or threat and shall immediately notify the Project
             Manager and Site Representative or, ifthe Project Manager cannot be contacted, the
             alternate Proj ect Manager and Site Representative. Respondents shall also notify the
             TCEQ Emergency Response Unit, 1-800-832-8224, Region 5, Tyler. Respondents
             shall take such action in accordance with all applicable provisions ofthe HASP. If
             Respondents fail to take appropriate response action as required by this Section and
             the ED takes such action instead, Respondents shall reimburse the ED all costs ofthe
             response action. Respondents shall make payments of such costs as specified in
             Section V (Order) Paragraph C and not later than forty-five (45) Days after the ED
             transmits a Demand Letter stating the amount owed.

      B.    Nothing in the preceding paragraph will be deemed to limit any authority of the State
            of Texas to take, direct, or order all appropriate action to protect human health and
            the environment or to prevent, abate, or minimize an actual or threatened release of
            solid wastes or hazardous substances to the environment on, at, or from the Site.

X.    Submittals Requiring the ED's Approval

      A.    Upon the ED's approval of a submittal, Respondents shall proceed to implement all
            actions required by the submittal according to the schedule approved by the ED.

      B.    Approved submittals may be modified upon agreement by the ED and the Perfonning
            Parties. The Performing Parties shall submit proposed modifications and obtain
            approval in accordance with the process for submittals specified in this AD generally.
            Upon approval of any modification, the modification is incorporated into the original
            submittal for all purposes.

      C.    The ED's approval of submittals or modifications is administrative in nature and
            allows the Agreeing Respondents or, if there are no Agreeing Respondents to this
            AD, the Performing Parties to proceed to the next steps in the Remedial Activities.
            The ED's approval does not imply any warranty of performance, does not imply that
            the Remedy, when constructed, will meet the Remediation Goals, nor does it imply
            that the Remedy will function properly and ultimately be accepted by the ED.

XI.   Submittal of Documents, Sampling, and Analyses

      A.    Respondents shall provide to the ED all data, information, documents, or records
            related to the Site which are generated or obtained by any Respondent within twenty

                               Page 46 - Voda Petroleum, Inc., State Superfund Site




                                                Exhibit A
                                                                                                      1778
              (20) Days of any written request from the ED for such data, information, document,
              or record. Respondents shall provide written notice to the ED immediately upon
              generating or obtaining any such data, information, document or record.

       B.     Subject to the confidentiality provisions set forth in Paragraph C below, all data,
              information, documents, and records developed pursuant to this AO or submitted by
              Respondents to the ED pursuant to this AO will be available to the public.

       C.     Respondents may assert a claim of business confidentiality pursuant to the Texas
              Public Information Act as to any process, method, technique, or any description
              thereofthat the Respondents claim constitutes proprietary or trade secret information
              developed by Respondents or developed by their contractors or subcontractors. If no
              confidentiality claim accompanies the process, method, technique, or description
              thereof when submitted to the ED, any such process, method, technique, or
              description thereof may be made available to the public by the ED or the State of
              Texas without further notice to Respondents. Respondents shall make business
              confidentiality determinations in good faith.

       D.     The ED or his Site Representatives may take splits or duplicates of any samples
              obtained by any Respondent at the Site at any time including during the
              implementation of the Remedial Activities. The Respondents shall provide
              assistance necessary for the ED to take split or duplicate samples.

       E.     Respondents shall provide the ED with a schedule ofroutine'sampling and notify the
              ED at least seven (7) Days before any non-routine sampling is conducted at the Site,
              except in the event of situations provided for by Section IX (Endangerment and
              Immediate Threat). Respondents shall collect and analyze all Samples in accordance
              with approved work plans developed pursuant to this AO and shall handle all
              Samples in accordance with the approved RA Quality Assurance Project Plan.

       F.     Respondents shall submit all data, information, reports, schedules, and other
              documents required by this AO in hard copy format (two hard copies of draft
              submittals and three of final submittals) and in specific computer software format
              (one electronic copy of each draft and final submittal) as determined by the Project
              Manager.

XII.   Notices and Submittals

       Respondents shall make all notices and submittals required by this AO in writing and in
       accordance with the contact information contained in this Section unless otherwise expressly
       authorized. Receipt by the Site Coordinator of any notice or communication from the ED
       relating to this AO will be deemed by the ED to be receipt by all Respondents. All
       information required to be submitted pursuant to this AO, including data, documents,
       records, reports, approvals, and other correspondence, will be submitted to the following

                                Page 47 . Voda Petroleum, Inc., State Superfund Site




                                                  Exhibit A
                                                                                                      1779
        Parties at the addressees listed below or to such other addressees as such Party hereafter may
        designate in a written communication to all other Parties:

        As to the Texas Commission on Environmental Quality:

               For mail:

                       Texas Commission on Environmental Quality
                       Remediation Division
                       Mail Code 136
                       P.O. Box 13087
                       Austin, TX 78711-3087
                       Attention: Project ManagerNoda Petroleum, Inc. State Superfund Site

               For overnight express mail or delivery service:

                       Project Manager
                       Mail Code 136
                       Voda Petroleum, Inc. State Superfund Site
                       TCEQ, Remediation Division
                       Building D, Floor 1, Room 277N
                       12100 Park 35 Circle
                       Austin, TX 78753

               By facsimile:

                       Project Manager
                       Voda Petroleum, Inc. State Superfund Site
                       Superfund Cleanup Section
                       (512) 239-2450

XIII.   Periodic Review

        A.     Respondents shall provide written progress reports on the Remedial Activities to the
               ED, as specified below in Paragraphs Band C.

        B.     RDIRA Progress Reports

               1.      Respondents shall submit written monthly progress reports to the ED
                       beginning on the tenth Day ofthe month following the Effective Date. These
                       progress reports will describe the actions taken pursuant to this AO during the
                       previous month, including a general description of activities and progress
                       during the reporting period, activities projected to be commenced or
                       completed during the next reporting period, and any problems encountered

                                 Page 48 - Voda Petroleum, Inc., State Superfund Site




                                                   Exhibit A
                                                                                                         1780
            or anticipated by Perfonning Parties in commencing or completing the
            Remedial Activities. Progress reports will include all data received during
            the reporting period and an up-to-date progress schedule. Progress reports
            will identify any violations ofthis AO and calculate any applicable stipulated
            penalty required under Section XXI (Stipulated Penalties). The requirement
            to submit these monthly progress reports will be tenninated at the earlier of:
            1) if no PCA Plan is required, when the AO is tenninated in accordance with
            Section XXXIII (Tennination of the Administrative Order) or 2) if a PCA
            Plan is required, upon the ED's approval of a Final PCA Plan in accordance
            with Section VI (Remedial Activities) Paragraph D.

     2.     If an RD/RA progress report submitted by Perfonning Parties is deficient, the
            ED will provide written notice to the Site Coordinator. The notice will
            include comments and a description of the deficiencies.

     3.     Within ten (10) Days of the ED providing the Site Coordinator with a notice
            of deficiency of an RDIRA progress report, Perfonning Parties shall make
            such changes as the ED deems necessary and resubmit the progress report to
            the ED.

C.   Post Construction Progress Reports

     1.     Perfonning Parties shall submit written monthly post construction progress
            reports to the ED beginning on the tenth Day of the month following the
            initiation of the PCA as described in Section VI (Remedial Activities)
            Paragraph D.l. These progress reports will describe the actions taken
            pursuant to this AO, including a general description of activities and progress
            during the reporting period, activities projected to be commenced or
            completed during the next reporting period, and any problems encountered
            or anticipated by Perfonning Parties in commencing or completing the
            Remedial Activities. Post construction progress reports will include all data
            received during the reporting period and an up-to-date progress schedule.
            Post construction progress reports will identify any violations ofthis AO and
            calculate any applicable stipulated penalty required under Section XXI
            (Stipulated Penalties). The requirement to submit monthly post construction
            progress reports will be tenninated when the conditions specified in Section
            XN (Tennination of Post Construction Activities) have been met as
            detennined by the ED in his sole discretion.

     2.     If a monthly post construction progress report submitted by Perfonning
            Parties is deficient, the ED will provide written notice to the Site
            Coordinator. This notice will include comments and a description of the
            deficiencies.


                      Page 49 - Voda Petrolewn, Inc., State Superfund Site




                                        Exhibit A
                                                                                              1781
              3.      Not later than ten (10) Days after the ED provides the Site Coordinator with
                      a notice of deficiency of a post construction progress report, Perfonning
                      Parties shall make such changes as the ED deems necessary and resubmit the
                      post construction progress report to the ED.

XIV.   Tennination of Post Construction Activities

       The ED will terminate the requirement to perfonn PCA if Respondents demonstrate that all
       Remediation Goals have been met. The Respondents shall satisfactorily perfonn PCA for
       the duration of time specified in the RSD, and the Remediation Goals will not be deemed
       achieved before the time specified in the RSD.

XV.    Records

       A.     Each Respondent shall preserve and retain, and shall instruct its accountants,
              attorneys, employees, agents, contractors, and subcontractors and anyone else acting
              on its behalf at the Site to preserve and retain, in the form of originals or copies, all
              data, records, documents, and information of whatever kind, nature, or description
              that relate in any way to the Site that are now or that corne to be in its possession or
              control. The previous sentence is meant to include data, records, documents, or
              information relating to each Respondent's potential liability or to any other person's
              potential liability for the Site under Section 361.271 of the Act.

       B.     All data, records, documents, and information required to be preserved and retained
              in accordance with Paragraph A above will be preserved and retained for a minimum
              often (10) years after the ED's issuance ofthe Approval ofRA Completion. At the
              end of this ten (10) years, each Respondent shall notify the ED at least ninety (90)
              Days before any such data, records, documents, or information is destroyed. If the
              ED requests, Respondents shall, at no cost to TCEQ, provide the ED originals or
              copies of such data, records, documents, or information which are not protected by
              a privilege as per Paragraph C below.

              Until this AO is tenninated in accordance with Section XXXIll (Termination ofthe
              Administrative Order), Respondents shall maintain an index of documents that
              Respondents claim contain privileged information. The index will contain, for each
              document, the date, author, addressee, and subject of the document. Respondents
              shall submit a copy ofthe index to the ED within ten (10) Days after the ED submits
              a written request.

       C.     Any Respondent refusing to provide copies of any data, information, records, or
              documents based upon a claim of privilege shall identify the data, information,
              record, or document and explain the basis for the claim. Notwithstanding the
              immediately preceding sentence, any data, record, information, or document required
              to be developed or submitted pursuant to this AO will be available to the public.

                                 Page 50 - Voda Petroleum, Inc., State Superfund Site




                                                  Exhibit A
                                                                                                          1782
       D.       At any time prior to the completion of the Work, the ED may contact the Site
                Coordinator to determine the location and/or to obtain copies of any or all ofthe data,
                records, documents, or information developed in accordance with this AO. The
                Respondents shall provide copies of any such data, records, documents, and
                information to the ED at no cost to TCEQ.

       E.       Upon request by the ED, Respondents shall submit to the ED all data, information,
                records, and documents requested, including those relevant to the items specified in
                Section 361.182(b) of the Act for possible inclusion in the administrative record in
                accordance with 30 TEX. ADMIN. CODE Section 335.345.

XVI.   Access

       A.       As of the Effective Date, any Respondent that owns, in whole or in part, the Site, an
                off-site area that is to be used for access to the Site, property subject to or affected by
                the Remedial Activities, or other property where documents generated in accordance
                with this AO are or come to be located shall provide access to such property to the
                ED; any federal, state or local authorities and their contractors approved by the ED;
                and the Performing Parties and their authorized representatives and contractors.
                Failure to provide such access may result in the imposition of statutory and/or
                stipulated penalties. Respondents shall indemnify TCEQ, and TCEQ will not be
                liable, for any loss or claim arising out of Respondents , activities at the Site, on off-
                site areas to be used for access to the Site, on property subject to or affected by the
                Remedial Activities, and on other property where documents generated in accordance
                with this AO are or come to be located.

       B.       If a person other than a Respondent owns, in whole or in part, the Site, an off-site
                area that is to be used for access to the Site, property subject to or affected by the
                Remedial Activities, or other property where documents generated in accordance
                with this AO are or come to be located, Respondents shall obtain, or use their best
                efforts to obtain, Site access agreements from the then current owner( s) within ninety
                (90) Days of the Effective Date. Respondents shall secure agreements to provide
                access for the ED, federal, state or local authorities and their contractors as approved
                by the ED, and the Performing Parties and their authorized representatives and
                contractors. Respondents shall insure that such agreements specify that TCEQ is not
                liable for any loss or claim arising out of any activities at the Site, on off-site areas
                to be used for access to the Site, on property subject to or affected by the Remedial
                Activities, or on other property where documents generated in accordance with this
                AO are or come to be located. Respondents shall provide copies of such agreements
                to the ED before the Performing Parties initiate field activities. Respondents' best
                efforts shall include, if necessary, providing reasonable compensation to any property
                owner not a Party. If access agreements are not obtained within the ninety (90) Days,
                Respondents shall immediately notify the ED oftheir failure to obtain access. Ifthe
                ED determines, in his sole discretion, that the Performing Parties have used best

                                   Page 51 - Voda Petroleum, Inc., State Superfund Site




                                                    Exhibit A
                                                                                                              1783
              efforts to obtain such access, the ED will, pursuant to statutory authority, make
              appropriate efforts to obtain such access upon reasonable terms to the Agreeing
              Respondents or, ifthere are no Agreeing Respondents to this AO, to the Performing
              Parties. Any revision to the deadlines specified in this AO necessitated by
              Respondents' inability to obtain such access may be considered a reasonable ground
              for extending any affected deadline pursuant to Section XVIII (Extension of
              Deadlines).

       C.     Subject to the Agreeing Respondents' reasonable safety and internal security
              requirements, the ED will have the authority to enter, freely move about, and exit the
              Site, any off-site area that is to be used for access to the Site, property subject to or
              affected by the Remedial Activities, or other property where documents generated in
              accordance with this AO are located or come to be located, for the purposes of:
              inspecting conditions at the Site, the Remedial Activities and all information,
              documents, data, records, operating logs, and contracts related to the Site; reviewing
              the Performing Parties' progress in performing the Remedial Activities; conducting
              such tests as the ED deems necessary; using a camera, sound recording device, or
              other documentary type equipment; verifying the data submitted to the ED by the
              Performing Parties; and performing any Remedial Activities not being performed or
              not being satisfactorily performed by the Performing Parties. Nothing herein will be
              interpreted as limiting or affecting the ED's right of entry or inspection authority
              under state or federal law . All persons with access to the Site shall comply with the
              HASP.

XVll, Delay in Performance

      Respondents shall notifY the ED of any delay or anticipated delay in achieving compliance
      with any requirement ofthis AO. Such notification will be made by telephone to the Proj ect
      Manager or, if not available, the alternate Project Manager, within forty-eight (48) hours after
      Respondents first knew or should have known that an event might cause a delay. Within
      seven (7) Days after notifying the ED by telephone, Respondents shall provide written
      notification fully describing the cause of the delay, the anticipated duration of the delay, the
      measures taken and to be taken by Respondents, their contractors, or consultants, to prevent
      or minimize the delay, and the timetable by which these measures have been, are being, and
      will be implemented. A revised timetable will be implemented upon its approval by the ED.

XVIll. Extension of Deadlines

      Upon failure to comply with the terms and conditions of this AO, any Defaulting Performing
      Parties shall cease to be Performing Parties and all such rights and privileges as accrue to the
      Performing Parties pursuant to this AO will immediately terminate as to such Defaulting
      Performing Parties. At that time all responsibilities and obligations that attach to RPs in
      addition to those that attach to Performing Parties will attach to Defaulting Performing


                                Page 52 - Voda Petroleum, Inc., State Superftmd Site




                                                 Exhibit A
                                                                                                          1784
       Parties that are RPs, including the requirement to pay TCEQ costs in accordance with
       Section V (Order) Paragraph C.

       Notwithstanding anything to the contrary in this AO, the Agreeing Respondents or, ifthere
       are no Agreeing Respondents to this AO, the Performing Parties shall bear no costs for any
       fines, penalties, or increases in the ED's oversight ofthe Remedial Activities resulting from
       Defaulting Performing Parties actions or inactions. Defaulting Performing Parties and the
       RPs may be assessed the ED's full costs for oversight of the Work. If actions required by
       this AO are delayed or are not timely completed because of acts or omissions of one or more
       Defaulting Performing Parties, the Agreeing Respondents, or if there are no Agreeing
       Respondents to this AO, the Performing Parties may request a time extension. Upon such
       request, the ED will approve the time extension, disapprove it, or approve such alternative
       time extension as the ED in his sole discretion deems appropriate. Thereafter, Respondents
       shall adhere to all remaining deadlines in this AO and in any documents developed in
       accordance with this AO and approved by the ED.

       The Agreeing Respondents may seek and the ED may grant an extension of any deadline
       contained in this AO or in any document submitted pursuant to this AO. Agreeing
       Respondents shall submit the request for a deadline extension no later than seven (7) Days
       prior to the deadline date and shall substantiate good cause for extension of the deadline.
       The determination of what constitutes good cause and the length of any deadline extension
       will be at the ED's sole discretion.

XIX.   Reserved

XX.    Compliance with Applicable Laws

       A.     Respondents shall perform all actions pursuant to this AO in accordance with the
              requirements of all applicable or relevant and appropriate federal, state, and local
              laws, including the Texas Solid Waste Disposal Act as codified in the Texas Health
              and Safety Code and the Texas Oil and Hazardous Substance Spill Prevention and
              Control Act as codified in the Texas Water Code. This AO is not, and shall not be
              construed to be, a permit issued pursuant to any federal or state statute or regulation.

       B.     All materials removed from the Site shall be disposed of or treated at a facility which
              is in compliance with all applicable or relevant and appropriate federal, state, and
              local laws and shall be disposed of or treated in accordance with all such
              requirements.

XXI.   Stipulated Penalties

       A.     Subject to the provisions of Sections XXII (Force Majeure) and XXllI (Resolution
              of Disagreements), noncompliance with this AD shall result in the imposition of
              stipulated penalties as set forth below.

                                 Page 53 - Voda Petroleum, Inc., State Superfund Site




                                                  Exhibit A
                                                                                                         1785
B.   Penalties Related to Timeliness of Submittals Required by this AO

     For failure to:

     1.      meet the deadlines set forth in Sections V (Order) and VI (Remedial
             Activities);

     2.      submit timely reports as set forth herein;

     3.      submit data in a timely fashion or provide timely notice of sampling as
             required by Section XI (Submittal of Documents, Sampling, and Analyses);
             or

     4.      resubmit a document within the timeframes specified herein;

             Agreeing Respondents shall pay stipulated penalties in the following amounts
             for each Day and part thereof during which any delay listed in Subparagraphs
             B.l through B.4 above continues:

             Period ofDelay                                                   Amount/Day

             1st through 14th Day                                             $500.00

             15th through 45th Day                                            $2,000.00

             46th Day and beyond                                              $3,000.00

C.   Penalties Related to Competency of Submittals

     This Paragraph applies to submittals of any document required by Sections VI
     (Remedial Activities), VII (Failure to Attain Remediation Goals or Findings of
     Significant Difference), and XIII (Periodic Review) which fail to be responsive and
     acceptable. Agreeing Respondents shall pay a stipulated penalty of$5,000 for each
     week and part thereof that an acceptable and responsive document is not submitted.
     This penalty may be assessed in addition to any penalties assessed under Paragraph
     B ofthis Section.

D.   Penalties Related to Project Milestones

     For failure to:

     1.      achieve any RA Proj ect Milestones in accordance with the schedule approved
             under Section VI (Remedial Activities) Paragraph B; or


                       Page 54 - Voda Petroleum, Inc., State Superfund Site




                                         Exhibit A
                                                                                            1786
     2.     achieve any PCA Project Milestones in accordance with the schedule
            approved under Section VI (Remedial Activities) Paragraph B.

     Agreeing Respondents shall pay stipulated penalties in the following amounts for
     each Day and part thereof during which any delay listed in Subparagraphs D.1
     through D.2 above continues:

            Period ofDelay                                                    Amount/Day

            1st through 14th Day                                              $1,000.00

            15th through 45th Day                                             $3,000.00

            46th Day and beyond                                               $10,000.00

E.   For disobeying an order to halt any or all ofthe Remedial Activities under Section
     vm (Project Manager/Site Coordinator), Agreeing Respondents shall pay stipulated
     penalties of $10,000 per Day.

F.   For failure to use best efforts to obtain Site access in accordance with Section XVI
     (Access), Agreeing Respondents shall pay a stipulated penalty of $1 ,000 per Day.

G.   For denying access provided for in Section XVI (Access), Agreeing Respondents
     shall pay stipulated penalties of $10,000 per Day.

H.   Any Agreeing Respondent who fails to provide records within ten (10) Days after
     receipt of a written request from the ED or within such other period as specified
     herein shall pay a stipulated penalty of $1 0,000 per Day.

1.   With the exception ofthe stipulated penalties referenced in Paragraphs E, G and H
     above which attach to individual Agreeing Respondents, all stipulated penalties
     assessed in accordance with this Section are joint and several, not individual,
     obligations.

J.   Agreeing Respondents shall pay stipulated penalties assessed under this Section as
     specified in Paragraph K below within sixty (60) Days after ED transmits a demand
     letter stating that stipulated penalties have accrued or after resolution of a
     disagreement as specified in Section XXIII (Resolution of Disagreements),
     whichever comes later. Stipulated penalties will accrue from the date of
     noncompliance until the noncompliance is corrected, provided however, that if any
     Respondent prevails in resolution of disagreements as specified in Section xxm
     (Resolution of Disagreements), it shall have no liability to pay stipulated penalties
     with regard to those matters submitted for resolution of disagreements in accordance
     with Section xxm (Resolution of Disagreements) in which it prevails.

                       Page 55 - Voda Petroleum, Inc., State Superfund Site




                                        Exhibit A
                                                                                             1787
       K.    Agreeing Respondents shall pay stipulated penalties to "General Revenue Fund of
             the State of Texas" and shall mail payments to:

             Chief Fiscal Officer (MC 180)
             Texas Commission on Environmental Quality
             "Re: Voda Petroleum, Inc. State Superfund Site Administrative Order, Docket
             Number 2009-1706-SPF"
             P.O. Box 13088
             Austin, Texas 78711-3088

      L.     The requirement to pay stipulated penalties that have been incurred prior to the
             tennination of this AD in accordance with Section XXXIII (Termination of the
             Administrative Order) will survive tennination of this AO.

      M.     A single act or omission may be the basis for more than one type of stipulated
             penalty. A single act or omission may also be subject to more than one (1) Day of
             stipulated penalties. In cases where more than one stipulated penalty applies to a
             single act or omission, the ED may choose which stipulated penalties to assess.

      N.     The ED has the sole discretion to reduce or waive stipulated penalties and to do so
             as to specific Agreeing Respondents or groups of Agreeing Respondents.

      O.     Stipulated penalties against Agreeing Respondents will be in lieu of administrative
             and civil penalties for the same violation but will not prevent TCEQ from seeking
             enforcement of the ordering provisions by injunctive relief. Respondents that are not
             Agreeing Respondents are subject to administrative and civil penalties.

XXII. Force Maj eure

      A.     If a delay in perfonnance is caused (in whole or in part) by events beyond the
             reasonable control ofthe Agreeing Respondents, that failure will not be construed as
             a violation of this AD. The burden of establishing that an event is beyond their
             reasonable control lies with the Agreeing Respondents. The Agreeing Respondents
             shall notify the ED in writing within seven (7) Days ofthe start ofthe Force Majeure
             event and within seven (7) Days of the end of the Force Majeure event. Agreeing
             Respondents shall submit the notification as specified in this Section. Failure to so
             notify the ED will constitute a waiver of the claim of Force Majeure.

             Such notice will describe in detail the cause ofthe delay; the anticipated duration of
             the delay; the measures taken and to be taken by the Agreeing Respondents, their
             contractors or consultants, to prevent or minimize the delay; and the timetable by
             which these measures have been, are being, and will be implemented. Measures to
             prevent or minimize the delay will be implemented upon the ED's written approval
             ofthe timetable. The Agreeing Respondents shall also submit, for the ED's approval,

                               Page 56 - Voda Petroleum, Inc., State Superfund Site




                                                 Exhibit A
                                                                                                      1788
              a proposed schedule for subsequent Remedial Activities whose deadlines have been
              affected by the Force Majeure event. Neither the ED's approval ofthe timetable of
              measures to be taken to prevent or minimize delays or of the revised schedule of
              Remedial Activities will be construed as excusing the delay or as a waiver of
              TCEQ's rights to enforce this AO.

       B.     Force Majeure events will not include increased costs or expenses of any part or all
              ofthe Work or the financial inability of any Agreeing Respondent to perform any part
              or all of the Work.

       C.     Ifthe ED and the Agreeing Respondents cannot agree that the cause for the delay was
              a Force Majeure event or cannot agree upon the schedule for subsequent Remedial
              Activities, then the disagreement will be resolved according to Section XXIII
              (Resolution of Dis agreements). The Agreeing Respondynts shall have the burden of
              demonstrating that Force Majeure is warranted.

XXIII. Resolution of Disagreements

      A.     The Agreeing Respondents and the ED shall attempt to resolve on an informal basis
             any issues arising under Sections V (Order) through XXXIll (Termination of the
             Administrative Order) on which there is disagreement. The Agreeing Respondents
             shall commence informal negotiations by notifying the Project Manager in writing
             that there is a disagreement and that this Section is being invoked. Except as
             provided below in Paragraph D, informal negotiations will not extend beyond thirty
             (30) Days from the date the Project Manager receives such notification, unless the
             Agreeing Respondents and the ED agree otherwise in writing.

      B.     The Agreeing Respondents shall notify the Proj ect Manager within thirty (30) Days
             after the Day the Agreeing Respondents knew or should have known of the events
             giving rise to the disagreement. Should the Agreeing Respondents fail to give such
             notice, the ED's decision on any disagreement will be binding.

      C.     Notification ofthe Project Manager in accordance with Paragraph A above will not
             by itself postpone the deadlines established in accordance with this AO or stay the
             accrual of any applicable stipulated penalties for the matter at issue. However, the
             obligation to pay any applicable stipulated penalties to the TCEQ will be stayed
             pending resolution of the disagreement in accordance with this Section.

      D.     If the ED makes a determination to perform a portion or all of the Remedial
             Activities, the Agreeing Respondents shall have five (5) Days after notification to the
             Site Coordinator to commence informal negotiations by notifying the Project
             Manager in accordance with Paragraph A above. Informal negotiations will not
             extend beyond fifteen (15) Days from the date the ED receives notification, unless
             the Agreeing Respondents and the ED agree otherwise in writing.

                               Page 57 - Voda Petroleum, Inc., State Superfund Site




                                                Exhibit A
                                                                                                       1789
       E.     The procedure for any resolution of disagreements subsequent to informal
              negotiations will be found in Sections 361.321 and/or 361.322 of the Act.

       F.     Unless otherwise specifically set forth herein, the fact that resolution of
              disagreements is not specifically set forth in individual Sections is not intended to
              and will not bar the Agreeing Respondents from invoking this Section as to any
              disagreement arising under Sections V (Order) through XXXIII (Termination ofthe
              Administrative Order), including any disagreement concerning the ED's exercise of
              discretion under the terms ofthis AO.

XXIV. Indemnification

       Respondents agree to indemnify and hold harmless TCEQ and its officers, employees,
       agents, principals and assigns from and against all fines, penalties, claims, damages, losses,
       demands, judgments, settlements, costs of suit, and attorneys fees that arise out of or result
       from:

              1.      Respondents' performance of an inherently dangerous activity or handling of
                      a solid waste or hazardous substance at or from the Site;

              2.      Respondents' negligent, reckless, or intentional acts or omissions or such acts
                      or omissions of any of its agents or employees; and

              3.      the negligent, reckless, or intentional acts or omissions of any of
                      Respondents' contractors or suppliers or their agents or employees.

XXV. Liability

      The State of Texas, by issuing this AO, assumes no liability for any injuries or damages to
      persons or property resulting from acts or omissions of Respondents, or their directors,
      officers, employees, agents, representatives, successors, assigns, contractors, or consultants
      in carrying out any of the Work. Neither TCEQ nor the State of Texas will be deemed a
      party to any contract entered into by any Respondent or its directors, officers, employees,
      agents, successors, assigns, contractors, or consultants to perform any or all of the Work or
      any other activity at the Site.

XXVI. Severability

      The provisions of this AO are intended to be severable and are deemed severable. Should
      any provision ofthis AO be rendered unenforceable by a court of competent jurisdiction or
      other appropriate authority the remaining provisions will remain valid and enforceable.




                                 Page 58 - Voda Petroleum, Inc., State Superfund Site




                                                  Exhibit A
                                                                                                        1790
XXVII. TCEQ' s General Reservation of Rights and Retention of Claims

      Except as specified herein, nothing in this AO will constitute or be construed as a covenant
      not to sue by TCEQ or the State of Texas or a release from any claim, cause of action, or
      demand in law or equity against any person, firm, partnership, or corporation. Except as
      specified herein, the ED reserves and this AO is without prejudice to all rights against
      Respondents with respect to all matters including:

              1.     Claims based on Respondents' failure to fulfill the requirements of this AO;

             2.      Liability arising from the past, present, or future disposal, release, or threat
                     of release of solid wastes or hazardous substances outside of or not related to
                     the Site;

             3.      Liability for future disposal of solid wastes or hazardous substances at the
                     Site, other than as provided in the RSD or in any work plan required to be
                     developed in accordance with this AO;

             4.      Liability for violations of federal or state law which occur during or after
                     implementation ofthe Remedial Activities;

             5.      Claims based on criminal liability; and

             6.      Claims for natural resource damages as defined by CERCLA (42 U.S.C.
                     Sections 9601 et seq.), the Oil Pollution Act of 1990 (33 U.S.C. Sections
                     2701 et seq.), the Oil Spill Prevention and Response Act (Texas Natural
                     Resources Code Chapter 40), and the Federal Water Pollution Control Act
                     (33 U.s.C. Sections 1251 et seq.).

xxvrn. Section Headings
      Section headings are included for convenience of reference only and will be disregarded in
      the construction and interpretation of any ofthe provisions of this AO.

XXIX. Continuing Authority

      TCEQ specifically retains authority over Respondents for the duration of this AO for the
      purposes of issuing such further orders or directions as may be necessary or appropriate to
      construe, implement, modify, enforce, terminate, or reinstate the terms of this AO or for any
      further relief as the interest of the State of Texas may require.

XXX. Enforcement



                                Page 59 - Voda Petroleum, Inc., State Superfund Site




                                                 Exhibit A
                                                                                                        1791
      Except as provided in Section XXI (Stipulated Penalties) Paragraph 0, nothing herein will
      preclude TCEQ from taking any additional enforcement actions against Respondents at any
      time including issuing such additional orders as TCEQ may deem necessary or from
      requiring Respondents to perform additional activities in the future and to completely
      perform all of the Work.

      This AO in no way obligates the State of Texas to assist Respondents in defending
      contribution actions brought by other persons or entities.

XXXI. Computation of Time

      A.     Deadlines falling on a weekend or a State of Texas holiday will be extended until the
             next business day.

      B.     The terms "submit" and "provide" as used herein will refer to the date on which
             information, data, a document, or a record is to be received by the appropriate Party.
             Submittals received on the deadline date will be deemed timely.

XXXll. Opportunity to Conference

      A.     The Agreeing Respondents or, ifthere are no Agreeing Respondents to this AO, the
             Performing Parties may, within twenty (20) Days after the Effective Date, request a
             conference with the Project Manager. The request must be submitted in writing to
             the Project Manager. Any such conference will occur at the TCEQ's main campus
             in Austin.

      B.     The purpose and scope of the conference will be limited to issues involving the
             implementation of the Remedial Activities. The conference is not an evidentiary
             hearing, does not constitute a proceeding to challenge this AO, and does not give
             Agreeing Respondents or, if there are no Agreeing Respondents to this AO, the
             Performing Parties the right to seek review of this AO.

xxxrn. Termination ofthe Administrative Order
      A.     The ED may terminate this AO when he determines that alternative or additional
             work is required at the Site because the Remediation Goals will not be attained by
             implementation of the Remedial Activities, unless Agreeing Respondents and the
             ED agree on such alternative or additional work, agree to modify the Remedial
             Action to include such additional or alternative work in accordance with Section V
             (Order) Paragraph J, and agree to modify this AO in accordance with Section V
             (Order) Paragraph J.

      B.     Except as provided in this Section, when the ED determines that the Work has been
             completed in accordance with this AO, the ED will provide written notice to

                               Page 60 - Voda Petroleum, Inc., State Superfund Site




                                                Exhibit A
                                                                                                      1792
              Agreeing Respondents that Agreeing Respondents have fully satisfied the
              requirements ofthis AO. Such notice will be issued within one hundred and eighty
              (180) Days after the ED determines that the Work has been completed in accordance
              with this AO. This notice will not, however, terminate Respondents' obligations to
              comply with those provisions specified herein that are intended to survive this AO,
              including requirements regarding record preservation and Sections XV (Records),
              XXI (Stipulated Penalties), XXV (Liability), XXIX (Continuing Authority), and
              XXX (Enforcement).

XXXN. Rules of Construction

      The masculine, feminine, and neuter gender will each include the other and the singular and
      plural number will each include the other.

      This AO may be executed in two or more counterparts each of which will be deemed an
      original but all of which together will constitute one and the same document.

xxxv. Sovereign Immunity
      The Parties hereby agree that nothing in this AO waives the State of Texas' sovereign
      immunity relating to suit, liability, and the payment of damages. The Parties further agree
      that all claims, suits, or obligations arising under or relating to this AO are subject to and
      limited to the availability offunds appropriated by the Texas Legislature for that respective
      claim, suit or obligation.




                                Page 61 - Voda Petroleum, Inc., State Superfund Site




                                                 Exhibit A
                                                                                                       1793
The Chief Clerk shall send a copy of this Administrative Order to all Parties.




Issue date:   FEB 12 2010
                              TEXAS COMMISSION ON
                              ENVlRONMENTAL QUALITY




                              Bry         w, Ph.D., Chainnan
                              For the Commission




                                Page 62 . Voda Petroleum, Inc., State Superfund Site




                                                 Exhibit A
                                                                                       1794
VODA PETROLEUM, INC.
 STATE SUPERFUND SITE
ADMINISTRATIVE ORDER




       EXHIBIT A




REMEDY SELECTION DOCUMENT




         Exhibit A
                            1795
REMEDY SELECTION DOCUMENT




                   TCEQ
      VODA PETROLEUM, INC.
      STATE SUPERFUND SITE
 CLARKSVILLE CITY, GREGG COUNTY,
             TEXAS


              SEPTEMBER 2009

 PREPARED BY: CAROL BOUCHER, P.G., PROJECT MANAGER
    TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
               REMEDIATION DIVISION




                      Exhibit A
                                                     1796
                                                 TABLE OF CONTENTS



I.      INTRODUCTION .............. ............................................................................................... 1
II.     PURPOSE ..... ..................................................................................................................... 1
III.    LEGAL AUTHORITY ..................................................................................................... 1
IV.     SITE HISTORY .................................................................. ;............................................. 2
V.      SUMMARY OF REPORTS ............................................................................................. 3
VI.     ACTION LEVELS ............................................................................................................ 4
VII.    THE SELECTED REMEDIAL ACTION ...................................................................... 5
VIII.   GLOSSARy ....................................................................................................................... 6




                                                             Exhi~it A                                                                          1797
                  VODA PETROLEUM, INC. STATE SUPERFUND SITE
                   CLARKSVILLE CITY, GREGG COUNTY, TEXAS
                        REMEDY SELECTION DOCUMENT

I.     INTRODUCTION

Voda Petroleum, Inc., (aka Ultra Oil) (Voda Site) occupies 6.12 acres at 211 Duncan Road,
approximately 1.25 miles west of the intersection of FM 2275 (George Richey Road) and FM
3272 (North White Oak Road), 2.6 miles north-northeast of Clarksville City in Gregg County.
The Voda Site was operated as a waste oil recycling facility from about 1981 until it was
abandoned in November 1991.

The Texas Commission on Environmental Quality (TCEQ) is an agency in the State of Texas
that implements many of the state laws relating to the conservation of natural resources and the
protection of public health and safety and the environment. The TCEQ addresses certain sites
that may constitute an imminent and substantial endangerment to public health and safety or the
environment through the state Superfund program.

II.    PURPOSE

This Remedy Selection Document (RSD) presents the Remedial Action (also known as "the
remedy") for the Voda Site, which is designed to address the contamination and provide
protection of public health and safety and the environment.

Words appearing in italics in this document are defined in Section VIII, "Glossary," of this RSD.

III.   LEGAL AUTHORITY

The investigation of the nature and extent of contamination at the Voda Site and the selection of
the Remedial Action is in accordance with the Solid Waste Disposal Act, Tex. Health & Safety
Code §§ 361.001-966 (West 2008); Subchapter K: Hazardous Substance Facilities Assessment
and Remediation (Subchapter K) rules found in 30 Tex. Admin. Code (TAC) §§ 335.341-351
(2009); and the Texas Risk Reduction Program (TRRP) rules found in 30 TAC §§ 350.1-135
(2009).

While the Subchapter K rules are specific to the Superfund process, the TRRP rules are a
comprehensive program for addressing environmental contamination and apply to many different
types of corrective action administered by the TCEQ. The TRRP rules establish procedures for
determining the concentration of contaminants to which a person or other environmental receptor
can be exposed without unacceptable risk of harm. These acceptable concentration levels are
called Protective Concentration Levels (PCLs).

A three-tiered approach may be used under the TRRP rules to calculate the PCLs for a site. The
tiers represent increasing levels of evaluation where site-specific information is factored into the
process. For example, Tier 1 uses conservative, generic models that do not account for site-
specific factors, Tier 2 allows for the use of site-specific information but must use PCL equations



                                                 1
                                            Exhibit A
                                                                                                       1798
provided by the TCEQ, and Tier 3 allows for more detailed and complex evaluations so that
PCLs are appropriate for specific site conditions. The PCLs for the Voda Site were developed
under Tier 1.

Critical to the analysis under all three of the tiers is the land use classification for the site. Under
the TRRP rules, the land can be classified as either residential or commercial/industrial.
Remediation to residential standards assumes that the site may be occupied by children and
therefore is applicable not only to strictly residential land but also to playgrounds, schools,
daycare centers and similar land uses. Remediation to commercial/industrial standards assumes
that the site will not be regularly occupied by children and is protective of persons who may
occupy the site as workers. Sites remediated to commercial/industrial standards cannot be used
for residential-type activities unless further controls are implemented to make the site safe for
that use. The TCEQ determined that a commercial/industrial use was appropriate for the Voda
Site.

The TRRP rules allow risks posed by the presence of contamination above a PCL to be managed
by any combination of the following: 1) removal or decontamination of contaminated media; 2)
physical controls, such as landfills and caps, which limit exposure to the contaminated media; or
3) institutional controls, such as deed restrictions on the future use of the property, which are
also intended to limit exposure to the contaminated media. These remedies under the TRRP
rules are divided into two main categories: Remedy Standard A and Remedy Standard B. To
meet Remedy Standard A requirements, the contaminated media must be removed and/or
decontaminated such that physical controls and, in most cases, institutional controls are not
necessary to protect human and ecological receptors from unprotective levels of contamination
based on the designated land use. To meet the requirements of Remedy Standard B, however,
physical controls and institutional controls may be relied on to limit exposure to unprotective
levels of contamination. These standards are described in detail in 30 TAC § 350.32 and §
350.33. The proposed remedy at the Voda Site meets the criteria established for Remedy
Standard A.

IV.    SITE HISTORY

The Voda Site was operated as a waste oil recycling facility from about 1981 until it was
abandoned in November 1991. The Voda Site is located in a rural 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., had received, stored and
processed waste gasolines; oily wastes; used oil 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 fifty-five-gallon drums of grease or oily wastes, 14 fifty-five-
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 EPA response action removed the immediate threat to human health and the environment
but was not intended to be and did not constitute a final remediation solution. Post removal
analysis of soil and groundwater samples indicated that soil and groundwater continued to be
contaminated above appropriate cleanup levels.




                                                   2
                                              Exhibit A
                                                                                                           1799
V.   SUMMARY OF REPORTS

     A.     HAZARD RANKING SYSTEM REPORT

     The Hazard Ranking System (HRS) is a numerically-based screening system that uses
     information from initial, limited investigations to assess whether a site qualifies for the
     state or federal Superfund program. Sites scoring 28.5 or greater may qualify for the
     federal Superfund program, while sites scoring 5 or greater may qualify for the state
     Superfund program. The HRS scoring for the Voda Site was prepared by the TCEQ in
     August 1995 and is presented in the report titled "Hazard Ranking System (HRS)
     Documentation Record, Voda Petroleum Site, Gregg County, Texas." The Voda Site
     earned a score of23.63. The TCEQ proposed t6 list the Voda Site on the State Registry
     of Superfund Sites and published notice of its intent in the Texas Register on November
     17,2000. 25 Tex. Reg. 11594-95 (Nov. 17,2000).

     B.     REMEDIAL INVESTIGATION REPORT

     The Remedial Investigation (RI) includes field work, laboratory analysis and
     interpretation of collected data for the purpose of determining the nature and extent of
     contamination associated with the Voda Site. The Phase I RI Report, dated August 2002,
     included a summary of the RI activities conducted at the site in May 2002. Based on the
     Phase I results, a second phase was conducted in April 2004, focusing on the area known
     as the "East Tank Farm." The Phase II RI Technical Memorandum (TM), dated July
     2004, concluded that the investigation of the extent of soil contamination above cleanup
     standards was complete; however, additional groundwater monitor wells were needed to
     complete the groundwater investigation. Additional groundwater monitor wells were
     installed from April 2005 through May 2007. The final round of monitor well
     installations was found to fully define the extent of the groundwater contamination.

     The following summarizes the findings of the RI:

     Groundwater - The Queen City Aquifer beneath the Voda Site is impacted by various
     volatile organic constituents (VOCs) exceeding the PCLs applicable to a Class 1
     groundwater resource.

     Onsite Soil - Soil containing contaminants above cleanup standards at the Voda Site is
     generally limited to the East Tank Farm area, encompassing an area of approximately 60
     feet by 120 feet and 12 feet deep. Contaminants exceeding cleanup standards include
     VOCs and Total Petroleum Hydrocarbons (TPH).

     Offsite Soil/Sediment - No offsite soil or sediment contamination was detected.

     Ecological Risks - The Tier 1 Exclusion Criteria Checklist determined that conditions at
     the Voda Site precluded the need for a formal ecological risk assessment (ERA) because




                                         Exhi~it A                                                 1800
       the site meets the conditions for "de minimis land area," meaning there are insignificant
       ecological exposure pathways at the site.

       C.      FEASIBILITY STUDY PHASE REPORT

       The Feasibility Study CFS) for the Voda Site, dated January 2008, presented an evaluation
       of the potential remedial alternatives to address the chemicals of concern CCOCs) in
       onsite soil and onsite and offsite groundwater found exceeding the applicable PCLs.

       D.      REMEDY SELECTION PHASE REPORTS AND MEETING

       The Proposed Remedial Action Document (PRAD), dated June 2008, presented a brief
       discussion of remedial actions evaluated and the specific remedy proposed by the TCEQ
       to address the contaminants exceeding the PCLs at the Voda Site.

       On October 23, 2008, a public meeting was held at the Broadway Elementary School
       Cafeteria in Gladewater, Texas, for the purpose of presenting the PRAD and soliciting
       public comment about the proposed remedy. Upon consideration of the comments
       received during the public comment period, the TCEQ selected the remedy described in
       this RSD.

       E.     PLUME MANAGEMENT ZONE (PMZ) DEMONSTRATION TECHNICAL
              MEMORANDUM (TM)

       In May 2009, TCEQ technical staff reevaluated information that could be read to support
       the finding of two possible classifications for the groundwater at the Voda Site. As a
       result, pursuant to 30 TAC § 350.33(f)(4), the TCEQ conducted a PMZ demonstration in
       accordance with TCEQ publication RG-366/TRRP-29, Soil and Groundwater Response
       Objectives in July 2009. The PMZ demonstration, detailed in the PMZ Demonstration
       TM dated August 3, 2009, showed that the COC concentrations will exceed cleanup
       levels at the nearest point of exposure, an intermittent creek located on the offsite
       affected property. Therefore, it was confirmed that a PMZ would not meet the remedial
       action goals and would not be an appropriate remedy for the groundwater at the V oda
       Site, and the currently selected remedial action continues to best fit the statutory criteria
       for remedial selection.

VI.    ACTION LEVELS

Remedial Action Objectives are the stated goal of the remedy that must be achieved to make the
site protective of human health and the environment. Action levels are the maximum numeric
concentrations of the COCs which must not exceed the Tier 1 PCLs for the appropriate land use
and groundwater resource classification. For the onsite and offsite groundwater, the Tier 1 PCLs
are those developed for Class 1 groundwater resources established in TRRP. For the onsite soil,
the Tier 1 PCLs are those developed for Commercial/Industrial Soil with a greater than 0.5 acre
source area for groundwater protection, with the exception of TPH which was developed based




                                                4
                                            Exhibit A
                                                                                                       1801
on site-specific exposure criteria. Those objectives and action levels are presented in the
following table for the specific COCs found at the Voda Site:

                                  ACTION
   GROUNDWATER
                                   LEVEL                REMEDIAL ACTION OBJECTIVES
 CONTAMINANT NAME
                                (Critical PCL)
 Benzene                                  5 !J.g/L Reduce COCs concentrations to levels below
 Dichloroethylene, 1,1-                   7 !J.g/L the action level (TRRP Tier 1 peL for
 Dichloroethane, 1,2-                     5 !J.g/L groundwater ingestion: TRRP Tier 1 GWGWrng).
 Vinyl chloride                           2 !J.g/L



  SOIL CONTAMINANT               ACTION
        NAME                      LEVEL                 REMEDIAL ACTION OBJECTIVES
                               (Critical PCL)
 Benzene                          0.013 mg/kg    Reduce COCs concentrations to levels below
 Dichloroethylene, cis-1 ,2-       0.12 mg/kg    the action level (TRRP Tier 1
 Ethylbenzene                        3.8 mg/kg   Commercial/Industrial Land Use PCL for
                                                 surface and subsurface soil to groundwater:
 Propylbenzene, n-                    67 mg/kg
                                                 TRRP Tier 1 C/I GWSoillng).
 MTBE                              0.93 mg/kg
 Tetrachloroethylene              0.025 mg/kg
 Toluene                             4.1 mg/kg
 Trichloroethane, 1,1,1-           0.81 mg/kg
 Trichloroethylene                0.017 mg/kg
 Trimethylbenzene, 1,2,4-             72 mg/kg
 Trimethylbenzene, 1,3,5-             79 mg/kg
 Vinyl chloride                   0.011 mg/kg
 Xylene, m                            53 mg/kg
 Xylene, 0                            35 mg/kg
 Xylene, p                            75 mg/kg

VII.   THE SELECTED REMEDIAL ACTION

In accordance with 30 TAC § 335.348(1) and the requirements of section 361.193 of the Solid
Waste Disposal Act, the TCEQ selects the Remedial Action for a site by determining which
remedial alternative is "the lowest cost alternative which is technologically feasible and reliable,
effectively mitigates and minimizes damage to the environment, and provides adequate
protection of the public health and safety and the environment." 30 TAC § 335.348(1). The
TCEQ has selected excavation with offsite disposal for the onsite soil, and the installation of
reactive biobarrier wells with institutional controls for the onsite and offsite shallow
groundwater.




                                                 5
                                            Exhibit A
                                                                                                       1802
Also in accordance with TRRP, the Performing Parties (or the TCEQ if no parties agree to fund
or perform the remedial action) shall record an institutional control in the real property records
of Gregg County. The institutional control shall be placed on each property which overlies
groundwater contaminated above the PCLs and shall describe the specific area of the
groundwater plume on each affected property. The institutional control shall remain in place
until such time as the TCEQ has determined that the Remedial Action Objectives have been
permanently achieved. If the Remedial Action is implemented by the TCEQ, the TCEQ will
request that the owner of each affected property voluntarily agree to record a restrictive covenant
to serve as the institutional control. If the property owner does not agree to the restrictive
covenant, the TCEQ shall record a deed notice to serve as the institutional control. If the
Remedial Action is implemented by Performing Parties, the Performing Parties shall be
responsible for securing the institutional control in the form of a restrictive covenant from the
owner of the affected property. All of the elements of the Remedial Action described above shall
be in accordance with detailed requirements established in TRRP.

Monitor wells installed at the Voda Site shall be sampled for the COCs identified in Section VI,
Action Levels, and the hydraulic gradient shall be measured quarterly during the first two years
and semi-annually for the following two years of the Remedial Action. Monitoring results shall
be evaluated no less frequently than annually to verify that the plume has been reduced in both
areal extent and concentration of COCs. Once the TCEQ determines that the Action Levels have
been permanently achieved, the TCEQ will discontinue sampling andlor monitoring activities.

VIII. GLOSSARY

Feasibility Study (PS) - A description, screening, and analysis of the potential Remedial Action
alternatives for a site.

Hazard Ranking System (RRS) - The scoring system used by the TCEQ to evaluate a site for the
state or federal Superfund program. The scoring system was developed by the United States
Environmental Protection Agency as described in 40 Code of Federal Regulations Part 300,
Appendix A.

Institutional Control - A legal instrument placed in the property records in the form of a deed
notice, restrictive covenant, or other form established in the TRRP rules which indicates the
limitations on or conditions governing the use of the property which ensures protection of human
health and the environment.

Performing Parties - Collectively, 1) any parties who agreed to fund or conduct the remedial
action by entering into an agreed order with the TCEQ and 2) parties that did not enter into an
agreed order with the TCEQ but that fund or perform the selected Remedial Action.

Plume Management Zone (PMZ) - The area of the groundwater protective concentration level
exceedance (PCLE) zone, plus any additional area allowed in accordance with 30 TAC §
350.33(f).




                                                                                                      1803
Potentially Responsible Parties (PRPs) - Persons or entities that the TCEQ considers potentially
responsible for the contamination of the site pursuant to section 361.271 of the Texas Health and
Safety Code.

Proposed Remedial Action Document (PRAD) - The document which describes the TCEQ's
proposed Remedial Action.

Protective Concentration Level (PCL) - The concentration of a chemical of concern which can
remain within the source medium and not result in levels which exceed the applicable human
health risk-based exposure limit or ecological protective concentration level at the point of
exposure for that exposure pathway.

Remedial Action - An action, including remedial design and post-closure care, consistent with a
remedy taken instead of or in addition to a removal action in the event of a release or threatened
release of hazardous substances into the environment to prevent or minimize the release of a
hazardous substance so that the hazardous substance does not cause an imminent and substantial
endangerment to present or future public health and safety or the environment.

Remedial Investigation (RI) - An investigative study which may include removals, and/or a
feasibility study, in addition to the development of protective concentration levels, designed to
adequately determine the nature and extent of release or threatened release of hazardous
 substances and, as appropriate, its impact on airs, soils, groundwater and surface water, both
within and beyond the boundaries of the site.

Solid Waste Disposal Act - Ch. 361 of the Tex. Health & Safety Code. The purpose of the Solid
Waste Disposal Act is to safeguard the health, welfare, and physical property of the people and to
protect the environment by controlling the management of solid waste, including any hazardous
waste that is generated. Subchapter F of Chapter 361 relates to the state Superfund process. The
Texas Health and Safety Code is available online at: http://www.statutes.legis.state.tx.us.

Texas Risk Reduction Program (TRRP) - A program of the TCEQ that provides a consistent
corrective action process directed toward protection of human health and the environment
balanced with the economic welfare of the citizens of the state. The rules for this program are
located in Chapter 350 of 30 Texas Administrative Code. The Texas Administrative Code is
available online at: http://www.sos.state.tx.us/tac/.




                                                7
                                            Exhibit A
                                                                                                     1804
   VODA PETROLEUM, INC.
    STATE SUPERFUND SITE
   ADMINISTRATIVE ORDER



            EXIDBITB




LIST OF SOLID WASTES AND HAzARDOUS
       SUBSTANCES AT THE SITE




              Exhibit A
                                     1805
Dichloroethylene, cis-1,2-
Benzene
Propylbenzene, n-
MTBE (methyl tertiary-butyl ether)
Tetrachloroethylene
Toluene
Trichloroethane, 1,1,1-
Trichloroethylene
Trimethylbenzene, 1,2,4-
Trimethylbenzene, 1,3,5-
Vinyl chloride
Xylene, m-
Xylene, 0-
Xylene, p-
Dichloroethylene, 1,1-
Dichloroethane, 1,2-




                           Exhibit A
                                       1806
    VODA PETROLEUM, INC.
     STATE SUPERFUND SITE
    ADMINISTRATIVE ORDER



            EXHIBITC




FIELD SAMPLING PLAN CONTENTS OUTLINE




              Exhibit A
                                       1807
                                      FIELD SAMPLING PLAN

                                       TABLE OF CONTENTS

Title and Approval Sheet

Distribution List

Table of Contents

1.0 mtroduction

•       Investigation Phase: Purpose - Briefly states the specific purpose of this FSP relative to the
        Quality Assurance Project Plan, Work Plan and/or other documents. A schematic presentation of
        the project documents and the location ofkey planning components should be presented.

•       RA Phase: Purpose - Briefly states the specific purpose of this FSP relative to the RA Contract
        Document, Quality Assurance Project Plan and/or other documents. A schematic presentation of
        the project documents and the location ofkey planning components should be presented.

•      Project/Task Organization - Identifies the key individuals or organization participating in the
       project, their role(s) and responsibilities, and the organizational chart for the project. (Project
       specific informationfor QAPP Element AY

2.0 Site and Project Summary

•       Investigation Phase: Problem Definition/Background - Briefly states the site description,
        surrounding area, historical information, previous investigation, suspected contamination
        source, probable transport pathways and other site information. Most of this information is
        available from the Conceptual Site Model developed during the planning phase. Any specific
        data gaps and methods to fill the data gaps should also be discussed. States the specific problem
        to be solved or the decision to be made and identifies the decision maker. (Project specific
        informationfor QAPP Element A5Y

       RA Phase: Problem Definition/Background - Briefly states the site description, historical
       information, previous investigation, a summary of the selected remedy, a brief discussion of the
       remedial action activities. States the specific problem to be solved or the decision to be made
       and identifies the decision maker. (Project specific information for QAPP Element A5Y

       Project/Task Description and Schedule - Briefly summarizes the project and the project tasks,
       the turnaround time for the project, including the turnaround time requirement for laboratory
       analysis. (Project specific information for QAPP Element A6Y

•      Describes any special personnel and equipment requiredfor the specific type of work being
       planned or measurement being taken and any special trainingicertification requirements.
       (Project specific informationfor QAPP Element A8Y




                                               Exhibit A
                                                                                                             1808
•      Data Acquisition Requirements (Non-direct Measurements) - Defines the criteria for the use of
       non-measurement sources, such as computer databases, programs, literature files, and historical
       databases. (Project specific informationfor QAPP Element B9Y

•      Assessment Techniques - Defines the number, frequency, and type of quality assessment
       activities, the responsible staff, the procedures to be performed during the life of the project.
       (Project specific informationfor QAPP Element Cl) 1

3.0 Analytical Requirements and Data Quality Objectives

•      Data Quality Objectives - Summarizes the project specific quality objectives and measurement
       performance criteria. This section should include the summary of the outcomes of the technical
       planning process (e.g., the 7-Step DQO process) used to develop the project objectives. The
       summary should also include a reference to Appendix B of the FSP, which contains a full
       discussion of the proposed DQOs for the project from which the summary was taken. Designates
       and briefly describes sampling units (e.g. AOCs, surface soil to 6 inches). States objectives by
       sampling unit or media. The project specific calculations or algorithms are also specified in this
       section. (Project specific information for QAPP Element A7) J

4.0 Sampling Plan Design

e      Sampling Process Design - All the relevant components of the experimental design and the key
       parameters to be evaluated are included in this section. This section should include the sampling
       activities, the rational for the design (in terms of meeting the DQOs), the sampling design
       assumptions, the procedures for locating and selecting environmental samples, a classification
       of measurements as critical or noncritical, the type and number of samples required for the
       project including the required field QC samples, the sampling locations and frequency, the
       applicable sample matrices, and an identification of samples critical to the project. Most of this
       information should be available from the output from Step 7 of the DQO process. (Project
       specific informationfor QAPP Element Bll

       Describes the sampling plan for each media, as applicable, including figures and tables.

       Surface Soil
       Subsurface Soil
       Groundwater
       Surface Water and Sediment
       Air
       Other Matrices

       This section should include a summary table containing a list of all chemicals of concern
       identifiedfor the project with the corresponding Level of Required Performance (LORP) (e.g.,
       action levels and preliminary remedial goals), analytical methods (including the preparation,
       analysis and cleanup methods), and the corresponding method quantitation limits for all
       analytes of concern.




                                               Exhibit A
                                                                                                            1809
 5.0 Sampling Methods and Sample Handling

        Sampling Method Requirements - Identifies sampling methods and equipment and describes the
        procedures for sample collection, preparation, and decontamination. This section should
        reference the Standard Operating Procedures located in Appendix A. (Project specific
        informationfor QAPP Element B2) 1

•       Sampling Handling and Custody Requirements - This section should include the required
        sample volumes, container types, and preservation requirements for non-standard or other
        analytical methods proposedfor project work that are not listed in Table B2-I of the Superfund
        Program QAPP. This section also includes the field sample handling and custody requirements
        for the project. (Project specific informationfor QAPP Element B3Y

•       This section contains the specific requirements for field instrument/equipment testing,
        inspection and maintenance for the project. Additionally, field instrument calibration and
        frequency requirements for water level, pH, temperature, conductivity, dissolved oxygen, redox
        potential, turbidity and other field measurements are addressed in this section as applicable to
        the project. This section also includes the critical field supplies, the inspection or acceptance
        testing requirements, and the acceptance criteria. (Project specific information for QAPP
        Element B6, Bl, and B8) 1

6.0 Field Survey and Measurements

•       This section describes the sampling methods and criteria for field survey and measurements,
        such as land surveys, hydrogeological tests and measurements, geophysical surveys and soil gas
        surveys, required for the project.

7.0 Additional Field Activities

•       This section contains descriptions and procedures for other field activities, such as
        presampling/mobilization activities, required notification, property access, site restoration and
        investigative-derived waste (ID W) handling and disposal .

. 8.0 Exceptions, Additions and Changes to the TCEQ Superfund Program QAPP

•       List any exceptions, additions and changes to the Superfund Program QAPP in each of the
        appropriate sub-sections corresponding to the table of contents of the Program QAPP below.
        Site specific information (e.g., Group A and Group B elements) specified above should not be
        restated in this section. Please refer to the Program QAPP for details. This section should also
        include specifications for non-standard methods and other analytical methods not specified in
        the Program QAPP.

        GROUP A: PROJECT MANAGEMENT
             A.I Title and Approval Sheet
             A.2 Table of Contents
             A.3 Distribution List
             A.4 Project/Task Organization




                                               Exhibit A
                                                                                                            1810
              A.5 Problem Definition/Background
              A.6 Project/Task Description
              A.7 Quality Objectives and Criteria
              A.8 Special Training/Certification
              A.9 Documentation and Records
                     A.9.l Field Operation Records
                     A.9.2 Laboratory Data Package
                     A.9.3 Laboratory Performance Criteria Data
                     A.9.4 Data Handling Records
                     A.9.5 Data Reporting Package Format and Document Control
                     A.9.6 Field Records/Data Reporting Package Archiving and Retrieval

       GROUP B: DATA GENERATION AND ACQUISITION
            B.l Sampling Process Design (Experimental Design)
            B.2 Sampling Methods
                      B.2.l Sample Containers
                      B.2.2 Sample Volumes, Container Types, and Preservation Requirements
            B.3 Sample Handling and Custody
                      B.3.l Field Sample Handling and Custody
                      B.3.2 Laboratory Sample Handling and Custody
            B.4 Analytical Methods
                      B.4.l Screening Methods
                      B.4.2 Definitive Preparation Methods
                     B.4.3 Definitive Analysis Methods
                     B.4.4 Non-standard Method Validation
            B.5 Quality Control
                     B.5.1 Definitive Analytical Methods
                     B.5.2 Screening Methods
                     B.5.3 Quality Control Measure Descriptions
                     B.5.4 Elements of Quality Control
                     B.5.5 Method Detection Limit, Method Quantitation Limit and Sample
                      Quantitation Limit
            B.6 Instrument/Equipment Testing, Inspection, and Maintenance
                     B.6.l Maintenance Responsibilities
                     B.6.2 Maintenance Schedules
                     B.6.3 Spare Parts
                     B.6.4 Maintenance Records
            B. 7 Instrument/Equipment Calibration and Frequency
            B.8 Inspection/Acceptance of Supplies and Consumables
            B.9 Non-direct Measurements
            B.lO Data Management
                     B.l 0.1 Logbooks and Forms
                     B.lO.2 Data Storage/Retrieval

GROUP C: ASSESSMENT AND OVERSIGHT
     C.l Assessments and Response Actions
     C.2 Reports to Management




                                            Exhibit A
                                                                                             1811
GROUP D: DATA VALIDATION AND USABILITY
     D.l Data Review, Verification and Validation
     D.2 Verification and Validation Methods
     D.3 Reconciliation with User Requirements

List of Tables

List of Figures

List of Appendices

• Appendix A - Standard Operating Procedures

• Appendix B - Data Quality Objectives Document

• Appendix C-Z - Other supporting documents as necessary.   1


Guidelines used in the preparation of the QAPP elements are:

•       EPA Requirements for Quality Assurance Project Plans, EPA QAlR-5 (EPAl2401B-01l003),
        March 2001

•       EPA Guidance for Quality Assurance Project Plans, EPA QAlG-5 (EP Al2401R-02/009),
        December 2002




                                              Exhibit A
                                                                                               1812
