      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-10-00016-CV



              TJFA, L.P. and Concerned Citizens and Landowners, Appellants

                                                v.

   Texas Commission on Environmental Quality and Waste Management of Texas, Inc.,
                                    Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
       NO. D-1-GN-08-004503, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING



                            MEMORANDUM OPINION

               TJFA, L.P. and Concerned Citizens and Landowners appeal the district court’s order

affirming a final order by the Texas Commission on Environmental Quality after a contested case

hearing before the State Office of Administrative Hearings (SOAH). In the final order, the

Commission granted appellee Waste Management of Texas, Inc.’s permit amendment application

to expand and rename its existing municipal solid waste landfill. For the reasons that follow, we

affirm the district court’s order affirming the Commission’s order.


                     FACTUAL AND PROCEDURAL BACKGROUND

               In 2005, Waste Management applied to the Commission for a permit to expand its

municipal solid waste landfill located near New Braunfels, Texas in Comal County and to rename

it “Mesquite Creek Landfill.” Waste Management sought to extend the permit boundary across

Mesquite Creek and into Guadalupe County, to change the property area from approximately
96 acres to 244 acres, and to increase the waste disposal unit footprint from approximately 79 acres

to 164 acres. Under the proposed expansion, Mesquite Creek would flow through the permitted area.

               Waste Management’s application was declared administratively complete in 2005 and

technically complete in 2006. See Tex. Health & Safety Code § 361.068 (addressing applications

that are administratively and technically complete); 30 Tex. Admin. Code § 330.51 (2006) (Tex.

Comm’n on Envtl. Quality, Permit Application for Municipal Solid Waste Facilities).1 After its

application was declared technically complete, Waste Management requested that the Commission

directly refer the application to SOAH for a contested case hearing. See 30 Tex. Admin. Code

§ 55.210 (2011) (Tex. Comm’n on Envtl. Quality, Direct Referrals); see also Tex. Water Code

§ 5.557(a).

               The contested case hearing was held over the course of six days in October 2007.

Appellants opposed the application and participated as parties at the contested case hearing. Other

parties included the Commission’s Executive Director, who did not oppose the application, and the

Office of Public Interest Counsel. After the hearing, the administrative law judge issued a proposal

for decision recommending that the Commission approve the application with some modifications.

The Commission adopted the ALJ’s recommendations with additional modifications and issued its

final order with findings of fact and conclusions of law.




       1
         The parties agree that the Commission’s rules in effect before the rules were revised in
2006 apply to the application. See 31 Tex. Reg. 2502 (2006) (discussing applicability of revisions
to municipal solid waste rules promulgated in March 2006). Citations to title 30, chapter 330 of the
Administrative Code then are to the rules in effect prior to the 2006 revisions.

                                                 2
               Appellants filed a motion for rehearing with the Commission. After it was overruled

by operation of law, they sought judicial review in Travis County District Court. See Tex. Gov’t

Code § 2001.171; Tex. Health & Safety Code § 361.321. Waste Management intervened in the suit

in support of the Commission’s order. The district court rendered judgment affirming the

Commission’s order. This appeal followed.


                                           ANALYSIS

               Appellants bring four issues challenging the district court’s judgment affirming the

Commission’s order. They contend that the Commission committed reversible error because Waste

Management failed to: (i) comply with rules and precedent regarding floodplains, (ii) adequately

demonstrate that increased runoff volume from the landfill would not significantly alter natural

drainage patterns or significantly increase flooding, and (iii) adequately test and characterize the

geology and hydrogeology of the expansion site. Appellants also contend that the Commission

committed reversible error by limiting only the landfill’s “waste acceptance hours” rather than all

“operating hours” in conflict with a prior settlement agreement between Waste Management and

Guadalupe County.


Scope and Standards of Review

               We review the Commission’s order under the substantial evidence standard of review

codified in section 2001.174 of the Government Code. See Tex. Gov’t Code § 2001.174. A court

applying this standard shall reverse or remand an administrative order “if substantial rights of the

appellant have been prejudiced because the administrative findings, inferences, conclusions, or



                                                 3
decisions are,” among other grounds, “affected by other error of law,” “not reasonably supported by

substantial evidence considering the reliable and probative evidence in the record as a whole,” or

“arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of

discretion.” Id. § 2001.174(2)(D)–(F). A court, however,“may not substitute its judgment for the

judgment of the state agency on the weight of the evidence on questions committed to agency

discretion.” Id. § 2001.174.

               With respect to section 2001.174(2)(E), “‘substantial evidence’ does not mean a large

or considerable amount of evidence but such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion of fact.” City of El Paso v. Public Util. Comm’n, 344 S.W.3d 609,

618 (Tex. App.—Austin 2011, no pet.) (citing Pierce v. Underwood, 487 U.S. 552, 564–65 (1988);

Lauderdale v. Texas Dep’t of Agric., 923 S.W.2d 834, 836 (Tex. App.—Austin 1996, no writ)).

“The test is not whether the agency made the correct conclusion in our view, but whether some

reasonable basis exists in the record for the agency’s action.” Id. (citing Railroad Comm’n v. Pend

Oreille Oil & Gas Co., Inc., 817 S.W.2d 36, 41 (Tex. 1991)). “We must uphold an agency’s finding

even if the evidence actually preponderates against it, so long as enough evidence suggests the

agency’s determination was within the bounds of reasonableness.” Id. (citing Southwestern Pub.

Serv. Co. v. Public Util. Comm’n, 962 S.W.2d 207, 215 (Tex. App.—Austin 1998, pet. denied)).

               To the extent that appellants’ issues address the construction of the Commission’s

rules, we review these questions de novo. Rodriguez v. Service Lloyds Ins. Co., 997 S.W.2d 248,

254 (Tex. 1999). In general, “[w]e construe administrative rules, which have the same force as

statutes, in the same manner as statutes.” Id.; see also State v. Shumake, 199 S.W.3d 279, 284 (Tex.



                                                 4
2006) (addressing statutory construction). “Unless the rule is ambiguous, we follow the rule’s clear

language.” Rodriguez, 997 S.W.2d at 254 (citation omitted). “If there is vagueness, ambiguity, or

room for policy determinations in a statute or regulation, . . . we normally defer to an agency’s

interpretation unless it is plainly erroneous or inconsistent with the language of the statute,

regulation, or rule.” TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 438 (Tex. 2011).

                The Commission’s rules require the applicant to prove compliance with the applicable

requirements by a preponderance of the evidence. See 30 Tex. Admin. Code § 80.17(a) (2011); BFI

Waste Sys. of N. Am., Inc. v. Martinez Envtl. Grp., 93 S.W.3d 570, 577 (Tex. App.—Austin 2002,

pet. denied).


Floodplain

                In their first issue, appellants contend that the Commission committed reversible error

by allowing Waste Management to rely on a published map prepared by the Federal Emergency

Management Agency (FEMA) to establish that the proposed area for the landfill was not within a

100-year floodplain or that the FEMA map itself was sufficiently reliable.2

                Appellants challenge the following findings of fact:


       26.c.    There are no topographical features such as floodplains, which, if present,
                would limit the development of the site as an MSW landfill.


       2
          For purposes of this appeal, a floodplain is defined as “[t]he lowland and relatively flat
areas adjoining inland and coastal waters, including flood-prone areas of offshore islands, that are
inundated by the 100-year flood.” 30 Tex. Admin. Code § 330.2(48) (Definitions). A 100-year
flood is “a flood that has a 1.0% or greater chance of recurring in any given year or a flood of a
magnitude equaled or exceeded once in 100 years on the average over a significantly long period.”
Id. § 330.2(1).

                                                  5
...

33.b.   The waste disposal limits of the currently permitted landfill and proposed
        expansion are not located in a 100-year floodplain; therefore, excessive
        erosion by fluvial processes associated with meandering stream channels
        should not occur within the waste footprint.
...

74.     The facility is designed and will be constructed to prevent the discharge of
        any solid wastes or pollutants adjacent to or into waters of the State of Texas
        or the United States, non-point source pollution of the waters of the United
        States, and discharge of dredged or fill material into waters of the State
        of Texas or the United States in violation of Section 404 of the Clean
        Water Act.

....

79.     The landfill will not restrict the flow of the 100-year flood, reduce the
        temporary water storage capacity of the floodplain, or result in washout of
        solid waste so as to pose a hazard to human health and the environment.

        a.     The waste disposal limits of the facility are located outside the
               100-year floodplain, as shown on the [FEMA] Flood Insurance Rate
               Map Community Panel Number 4854630130C (1986).

        b.     The central portion of the site associated with Mesquite Creek is
               within the flood pool of the downstream Freedom Lake.

        c.     The permitted waste disposal limits and the expansion area’s waste
               disposal areas, perimeter roads/berms, and leachate evaporation pond
               areas do not extend into the Freedom Lake flood pool.

        d.     Two storm water ponds are partially within the upper elevations of
               this flood pool, but are designed to allow backflow into the ponds
               during a flood event through their principal spillway pipes so as not
               to change the flood storage capacity of Freedom Lake.

        e.     Flood protection levees or other improvement to provide protection
               from the 100-year flood are not necessary.




                                          6
Appellants urge that these findings are not supported by substantial evidence and are arbitrary and

capricious.

               Relatedly, appellants also challenge the following conclusions of law:


       4.      Applicant submitted a complete permit amendment application, as required
               by Tex. Health & Safety Code Ann. §§ 361.066 and 361.068, which
               demonstrated that Applicant will comply with all relevant aspects of the
               application and design requirements as provided in 30 TAC §§ 330.4(m) and
               330.51(b)(1).
       ...

       6.      The evidence in the record is sufficient to meet the requirements of applicable
               law for issuance of the Draft Permit, as modified by this Order, including all
               requirements of the Solid Waste Disposal Act, Tex. Health & Safety Code
               Ann. Chapter 361, and 30 TAC Chapter 330.

       7.      The expansion of the proposed Mesquite Creek Landfill, if constructed and
               operated in accordance with the Solid Waste Disposal Act, 30 TAC Chapter
               330, and the Draft Permit as modified by this Order, will not adversely affect
               public health and welfare, physical property of the people of Texas, or the
               environment.

       ...

       15.     Pursuant to the authority of, and in accordance with, applicable laws and
               regulations, the requested permit should be granted.


Appellants urge that these conclusions of law are legally erroneous, unsupported by substantial

evidence, and arbitrary and capricious.

               Section 330.56 of Title 30 of the Administrative Code lists the required attachments

to the site development plan, and subsection (f)(4)(B) of section 330.56 addresses flood control and

analysis. 30 Tex. Admin. Code § 330.56 (Attachments to the Site Development Plan). Subsection

(f)(4)(B) provides that the applicant must:

                                                 7
       (i)      Identify whether the site is located within a 100-year floodplain. Indicate the
                source of all data for such determination and include a copy of the relevant
                Federal Emergency Management Agency (FEMA) flood map, if used, or the
                calculations and maps used where a FEMA map is not available. Information
                shall also be provided identifying the 100-year flood level and any other
                special flooding factors (e.g., wave action) that must be considered in
                designing, constructing, operating, or maintaining the proposed facility to
                withstand washout from a 100-year flood. The boundaries of the proposed
                landfill facility should be shown on the floodplain map.

       (ii)     If the site is located within the 100-year floodplain, the applicant shall
                provide information detailing the specific flooding levels and other events
                (e.g., design hurricane projected by Corps of Engineers) that impact the flood
                protection of the facility. . . .


Id. § 330.56(f)(4)(B)(i)–(ii). This subsection expressly requires an applicant to demonstrate that the

proposed landfill site does not lie within a 100-year floodplain or that it will not pose certain risks

if it does lie within a 100-year floodplain. See id.; see also id. § 330.301.3

                Appellants contend that the evidence was undisputed that the proposed landfill

development was within a floodplain and that there was no reliable evidence that the FEMA map

was accurate or that FEMA had actually analyzed the specific floodplain at issue. To support these




       3
           Section 330.301 states:

       Owners or operators of new MSWLF units, existing MSWLF units, and lateral
       expansions located in 100-year floodplains shall demonstrate that the unit will not
       restrict the flow of the 100-year flood, reduce the temporary water storage capacity
       of the floodplain, or result in washout of solid waste so as to pose a hazard to human
       health and the environment. The owner or operator shall submit the demonstration
       with a permit application, a permit amendment application, or a permit transfer
       request. The demonstration shall become part of the operating record once approved.

See 30 Tex. Admin. Code § 330.301 (Floodplains).

                                                  8
contentions, appellants assert that Waste Management and Commission engineers testified that the

landfill lies within a floodplain and that the FEMA map at issue omitted a flood pool that exists near

the landfill site.   However, Scott Graves, the engineer of record for Waste Management’s

application, and a Commission engineer provided conflicting testimony as to whether the landfill

was within a floodplain and concerning the methodology FEMA employed to prepare the FEMA

map at issue.

                Our role is not to second-guess the Commission’s weighing of the floodplain

evidence. As long as “some reasonable basis exists” in the record for the action taken by the agency,

we must uphold it. See Public Util. Comm’n, 344 S.W.3d at 618. Section 330.56(f)(4)(B) expressly

references and contemplates the use of FEMA maps, and, consistent with this subsection, Graves

testified that the Commission “typically” accepts FEMA maps as reliable sources of information and

that he relied on FEMA maps to establish that the proposed area for the landfill was not within a

100-year floodplain.4 See 30 Tex. Admin. Code § 330.56(f)(4)(B). The relevant FEMA map itself

also supports this conclusion. The FEMA map divides the area around the landfill into “zones”

according to their susceptibility to flooding. Among others, “Zone A” consists of areas within a

100-year floodplain, Zone C consists of “areas of minimal flooding,” and Zone D consists of

“undetermined” areas. The map places Waste Management’s landfill site, including the proposed

expansion area, in Zone C.


       4
           Graves also testified that he studied “what would happen during a 100-year storm of the
flood going through Mesquite Creek” and whether the proposed “landfill features [would] restrict
that flow.” He concluded that the landfill features would not “significantly restrict that flow.”
Graves also testified that Mesquite Creek was a “wet-weather stream. It flows when it rains, and
then it dries up at some point after that.”

                                                  9
               Given that section 330.56(f)(4)(B) expressly references and contemplates the use of

FEMA maps as well as the evidence presented at the contested case hearing, we cannot conclude that

the Commission erred by allowing Waste Management to rely upon FEMA maps to establish that

the proposed landfill area was not within a 100-year floodplain. See id. § 330.56(f)(4)(B); see also

42 U.S.C. § 4101 (West 2003) (FEMA federal agency statutorily entrusted with producing floodplain

maps); Sierra Club v. Federal Highway Admin., 715 F. Supp. 2d 721, 736 (S.D. Tex. 2010) (“[I]t

was reasonable for the defendants to rely on the same floodplain maps relied on by . . . FEMA.

Although there may have been reason to believe that the maps were not 100 percent accurate, they

provided the best available official data at the time, and it cannot be said that defendants acted

arbitrarily or capriciously in relying on them.”).

               Appellants also argue that the Commission’s decision to allow Waste Management

to rely upon FEMA maps runs contrary to the Commission’s own precedent. Appellants cite two

earlier Commission orders in which the Commission denied landfill permits to applicants who relied

on FEMA maps to establish that their proposed landfills did not lie within 100-year floodplains. See

Tex. Comm’n on Envtl. Quality, An Order Regarding the Application by Tan Terra Environmental

Services, Inc., L.L.C., Permit No. MSW-2305, Docket No. 2004-0743-MSW, at 9 (Apr. 20, 2006);

Tex. Comm’n on Envtl. Quality, An Order Denying the Application by Juliff Gardens, L.L.C.,

Permit No. MSW-2282, Docket No. 2002-0117-MSW, at 5 (Oct. 4, 2004). These proceedings,

however, do not support appellants’ position. In Tan Terra, the applicant relied upon a FEMA

floodplain index that did “not clearly delineate whether the Facility [was] or [was] not located in a

floodplain,” and, in the Juliff Gardens proceeding, the FEMA map itself showed that FEMA had not



                                                     10
actually studied the area around the proposed landfill site. Here, in contrast, the FEMA map’s

“zone” scheme affirmatively addresses the areas around the boundaries of the landfill, and its

proposed expansion area, and shows that they are not within the zone of a floodplain but a zone of

“areas of minimal flooding.”

                We overrule appellants’ first issue.


Natural Drainage Patterns

                In their second issue, appellants contend that the Commission committed reversible

error by failing to require Waste Management to adequately demonstrate that increased runoff

volume from the landfill would not significantly alter natural drainage patterns or increase flooding.

See 30 Tex. Admin. Code §§ 330.55(b)(5)(D) (Site Development Plan), 330.56(f)(4)(A)(iv).

Specifically, appellants challenge the following findings of fact by the Commission:


        75.     Surface water controls at the proposed expansion will be designed to prevent
                rainfall run-off from coming in contact with leachate or refuse, maintain
                natural drainage patterns, and minimize erosion.
        ...

        83.c.   The post-development condition will maintain similar drainage patterns to the
                natural site and pre-development conditions.
        ...

        84.     The natural drainage patterns will not be significantly altered as a result of the
                landfill development; an increase in run-off volume will occur for three
                discharge points, but the post-development discharge rate will be less than the
                pre-development discharge rate.


In this connection, appellants again challenge conclusions of law 6, 7, and 15 as they did with their

first issue.

                                                   11
               A landfill-expansion application must include calculations, discussion, and analyses

to demonstrate that natural drainage patterns will not be significantly altered.              See id.

§§ 330.55(b)(5)(D) (“Sample calculations shall be provided to verify that natural drainage will not

be significantly altered.”), 330.56(f)(4)(A)(iv). Subsection (f)(4)(A) of section 330.56 addresses

“drainage and run-off control analyses,” and subsection (f)(4)(A)(iv) requires the applicant to

provide “discussion and analyses to demonstrate that natural drainage patterns will not be

significantly altered as a result of the proposed landfill development.” Id. § 330.56(f)(4)(A)(iv). The

Commission also has issued Guidelines for Preparing a Surface Water Drainage Plan for a

Municipal Solid Waste Facility (“Guidelines”) that include acceptable methods for addressing

surface-water drainage issues.5

               In its application, Waste Management discussed the volume of storm water runoff

at specified “discharge points”—points where storm water leaves the landfill site—during a 24-hour,

25-year storm event. The application described the runoff, including the volume of storm water and

the peak rate of discharge, at each discharge point under pre-expansion conditions. It then compared

that runoff with the projected runoff under post-expansion conditions to show that the proposed

landfill will not significantly alter natural drainage patterns.       See id. §§ 330.55(b)(5)(D),

.56(f)(4)(A)(iv).

               Appellants argue that Waste Management was required to perform calculations on

downstream sites as part of its analysis and failed to do so. Without such calculations, they argue,




       5
         The parties agree that the June 2004 version of the Guidelines applies here. We refer to
the Guidelines then as they existed in June 2004.

                                                  12
the Commission could not reasonably conclude that downstream natural drainage patterns would not

be significantly altered by the proposed landfill development. This Court addressed a similar

argument in Heritage on the San Gabriel Homeowners Association v. Texas Commission on

Environmental Quality, 393 S.W.3d 417 (Tex. App.—Austin 2012, pet. denied). In that case, we

upheld the Commission’s interpretation that section 330.56(f)(4)(A)(iv) did not require an analysis

of downstream sites and that the required analysis was of the “discharge impact only at the permit

boundary.” See id. at 431.6 We concluded that the interpretation was reasonable, not in conflict with

the plain language of the rule, and concerns a matter within the TCEQ’s administrative expertise.

Id. at 432. Following our prior analysis and conclusion, we conclude that it was reasonable not to

require Waste Management to perform calculations on downstream sites to establish that natural

drainage patterns would not be significantly altered. See id. at 431–32.

               Appellants alternatively cite a provision of the Guidelines that states “the expected

volume increase could vary from 5 to 60 percent” to support their contention that the Commission’s

findings and conclusions as to natural drainage were arbitrary and capricious. They point to the

section of Waste Management’s application that showed that the discharge volume at one discharge

point, Discharge Point E, would increase by 75 percent after the expansion. Appellants contend that,

assuming that the Commission’s “refusal to look downstream for any impacts is upheld,” the




       6
          See also Tex. Comm’n on Envtl. Quality, An Order approving the Application of North
Texas Municipal Water District for Municipal Solid Waste Permit No. MSW-2294, TCEQ Docket
No. 2002-0745-MSW, SOAH Docket No. XXX-XX-XXXX, at 18 (Oct. 20, 2003); Tex. Natural Res.
Conserv. Comm’n, An Order Denying the Application of Blue Flats Disposal, L.L.C., for Permit
No. MSW-2262, TNRCC Docket No. 98-0415-MSW, SOAH Docket No. XXX-XX-XXXX, at 8
(Jan. 2, 2001).

                                                 13
Commission “has never articulated any such [reasonable] criteria nor explained why a 75 percent

increase in runoff volume at the permit boundary is not ‘significant.’”

                The Guidelines, however, expressly state that “[t]here is no clear-cut number or

percentage of change that can be set to indicate a ‘significant’ change.” Rather, “[w]hat is

considered ‘significant’ is a subjective term that cannot be defined as a specific, objective criterion.”

Thus, “the ‘significantly altered’ issue is best determined on a case-by-case basis and is one of

professional judgment.” The Guidelines also expressly provide that “[t]ypical methods” for

demonstrating “that any volume increase (or decrease) is not ‘significant’” include to “[d]emonstrate

that the additional volume will be released at a rate that will not significantly affect the downstream

receiving water body.”

                Waste Management proposed to manage increased runoff volumes through the use

of detention ponds, as well as other engineering features, and its application showed that the

detention ponds will accommodate increased runoff volume by detaining and discharging the runoff

in a controlled, attenuated manner. According to this proposal, while the volume of discharge at

Point E will increase following development, it will be released downstream at rates and velocities

lower than in pre-development conditions.          Waste Management’s application also contains

calculations and analyses of runoff volumes, flow velocities, and the timing of peak runoff

conditions in both pre- and post-development conditions. Graves testified that he considered runoff

volumes, velocities, and timing, in addition to peak discharge rates and other factors, and he

determined that the landfill expansion will not significantly alter natural drainage patterns. The

Commission’s engineer testified that he agreed with Graves’s determination. Based upon this



                                                   14
evidence, the Commission could reasonably conclude that by proposing the use of detention ponds,

as well as other engineering features, to lessen discharge rates and velocities, Waste Management

adequately demonstrated that the expected increase in storm water runoff volume at Discharge Point

E will not significantly alter natural drainage patterns or increase flooding.

               We overrule appellants’ second issue.


Geology, Hydrogeology, and Groundwater Monitoring

               In their third issue, appellants argue that the Commission erred by granting Waste

Management’s application without requiring Waste Management to adequately test and characterize

the geology and hydrogeology of the expansion site, which resulted, in appellants’ view, in an

inherently unreliable groundwater monitoring system. Appellants urge that Waste Management

improperly relied on data from tests for permeability and horizontal hydraulic conductivity that were

conducted on samples from the existing landfill area. As a result, appellants argue, Waste

Management failed to show that its proposed groundwater monitoring system will be sufficient for

the conditions that exist beneath the proposed expansion area.

               Appellants challenge the following findings of fact:


       46.c.   Because Stratum III is capable of yielding representative samples of
               groundwater that could identify a potential release from the landfill,
               it is considered the uppermost aquifer (30 TAC § 330.231(a)).
       ...

       48.a.   Monitoring wells and piezometers in Stratum IV were dry or
               contained insufficient quantities of groundwater for sampling
               purposes, and the unit has relatively low permeability.
       ...



                                                 15
48.c.   Stratum IV and the underlying clays are, collectively, the lower
        aquitard or confining unit for Stratum III.

49.     The most likely pathways for pollutant migration from the landfill
        are within the saturated base of Stratum III and along the
        Strata III/IV contact.

        a.     Stratum III is the main stratum intersected by the linear
               system side slopes and base.

        b.     Neither the inactive fault in the existing site nor Mesquite
               Creek appear to be potential pathways for pollutant migration.

        c.     Any contaminant released from the landfill would move at
               the same rate and direction as the groundwater beneath
               the facility.

        d.     Because the horizontal and vertical hydraulic conductivities
               decrease with depth, there is no potential for landfill
               constituent migration from the facility to the Edwards Aquifer
               during the active life, closure, and post-closure care periods.
...

59.     The proposed monitoring wells will be:

        •      activated after the permit amendment is approved to collect
               intra-well background data;

        •      properly screened to monitor the groundwater encountered at
               the monitored location;

        •      able to detect a release from the facility.
...

61.     The proposed expansion of the facility is designed to be protective
        of groundwater.

        a.     Quality control procedures will be used during the
               construction and installation of the liner system.

        b.     A Soil and Liner Evaluation Report (SLER) and/or a
               Geomembrane Liner Evaluation Report (GLER) will be

                                         16
                       submitted to the [Commission] detailing the final construction
                       and lining of a new disposal cell prior to the placement of any
                       waste in that cell.


Appellants similarly urge that conclusions of law 6, 7, and 15, to the extent founded as they are on

the forgoing fact findings, are legally erroneous, unsupported by substantial evidence, and arbitrary

and capricious.

               Section 330.231(a) addresses the requirements for the groundwater monitoring system

and provides that it must consist of “a sufficient number of monitoring wells, installed at appropriate

locations and depths, to yield representative groundwater samples from the uppermost aquifer as

defined in [section] 330.2 of this title.” 30 Tex. Admin. Code § 330.231(a) (Groundwater

Monitoring Systems); see also id. § 330.56(e) (Attachment 5 - groundwater characterization report).

Section 330.2(6) defines an aquifer as “a geological formation, group of formations, or portion of

a formation capable of yielding significant quantities of groundwater to wells or springs.” Id.

§ 330.2(6); see also id. § 330.2(158) (“uppermost aquifer” defined as “the geologic formation nearest

the natural ground surface that is an aquifer; includes lower aquifers that are hydraulically

interconnected within this aquifer within the facility’s property boundary”).

               Section 330.56(d)(5) addresses the requirements for the subsurface and geotechnical

investigations and provides in relevant part:


       (5)     The owner or operator shall provide the results of investigations of
               subsurface conditions at a particular waste management unit in the
               following reports.

               (A)     Subsurface investigation report. This report must describe all borings
                       drilled on-site to test soils and characterize groundwater. . . .

                                                  17
                        (i)     A sufficient number of borings shall be performed to establish
                                subsurface stratigraphy and to determine geotechnical
                                properties of the soils and rocks beneath the facility. . . . The
                                number of borings necessary can only be determined after the
                                general characteristics of the site are analyzed and will vary
                                depending on the heterogeneity of subsurface materials. . . .

                        (ii)    Borings shall be sufficiently deep to allow identification of
                                the uppermost aquifer and underlying hydraulically
                                interconnected aquifers. . . .

                (B)     Geotechnical report. This report shall include engineering data that
                        describes the geotechnical properties of the subsurface soil materials
                        and a discussion with conclusions about the suitability of the soils and
                        strata for the uses for which they are intended. . . .

                        (i)     A laboratory report of soil characteristics shall be determined
                                from at least one sample from each soil layer or stratum that
                                will form the bottom and side of the proposed excavation and
                                from those that are less than 30 feet below the lowest
                                elevation of the proposed excavation. . . .

                        (ii)    Permeability tests shall be performed according to one of the
                                following standards on undisturbed soil samples. . . . Those
                                undisturbed samples that represent the sidewall of any
                                proposed trench, pit, or excavation shall be tested for the
                                coefficient of permeability on the sample’s in-situ horizontal
                                axis; all others shall be tested on the in-situ vertical axis. . . .


See id. § 330.56(d)(5)(A)(i)–(ii), (B)(i)–(ii) (Attachment 4 - geology report).               Among the

requirements for a permit to expand a landfill, the applicant must (1) identify the “uppermost

aquifer” at the proposed site; (2) perform horizontal permeability testing of soil layers or strata that

“represent the sidewall” of any proposed excavations; and (3) propose an adequate groundwater

monitoring system. See id. §§ 330.56(d), .56(e), .231.




                                                   18
               According to Waste Management’s application, the proposed landfill expansion area

will be excavated into four geological strata (I through IV, I being the uppermost and IV being the

lowermost). The two strata relevant here, Strata III and IV, are found throughout the site. Among

other testing, Waste Management performed soil borings on all four strata underneath the proposed

expansion area and determined that Stratum III was the uppermost aquifer or water-bearing zone and

that Stratum IV was dry and a “confining bed.”7 Although Waste Management proposed to excavate

and place waste into Stratum IV on the expansion site, its proposed groundwater monitoring system

would not extend below Stratum III.

               Appellants contend that Waste Management did not comply with the applicable rules

because it failed to demonstrate that the upper portion of Stratum IV was not part of the uppermost

aquifer or water-bearing zone and chose to excavate into that stratum for waste disposal without

having any monitoring wells at that level. They argue that “[s]imply looking at the soil borings is

inadequate to determine that no portion of Stratum IV is capable of conducting groundwater such

that it should not be considered part of the uppermost aquifer.” Appellants’ argument focuses

on Waste Management’s failure to test the borings for “horizontal hydraulic conductivity,” to

install piezometers, or to include groundwater monitoring in Stratum IV beneath the proposed

expansion area.8




       7
         Waste Management’s geologist Janet Meaux defined the phrase “confining bed” as “a body
of material of low hydraulic conductivity.”
       8
         According to testimony at the hearing, “horizontal hydraulic conductivity” is the ability to
transmit water horizontally, and a piezometer detects the presence and elevation of groundwater.

                                                 19
                We first address appellants’ arguments that Waste Management could not rely on data

showing the permeability and horizontal hydraulic conductivity of samples taken from beneath the

existing landfill area and that it failed to perform similar tests of samples from Stratum IV beneath

the proposed expansion area.         Their argument turns on the phrase “in situ” in section

330.56(d)(5)(B)(ii). See id. § 330.56(d)(5)(B)(ii) (samples must be tested on their “in-situ horizontal

axis”). The text of section 330.56(d)(5)(B)(i), however, requires only “one sample from each soil

layer or stratum that will form the bottom and side of the proposed excavation.”                      Id.

§ 330.56(d)(5)(B)(i) (emphasis added). And, specifically, with regard to testing permeability, the

sample must only “represent the sidewall” of the excavation. Id. § 330.56(d)(5)(B)(ii) (emphasis

added). Data included in Waste Management’s application and evidence adduced at the hearing

showed that the characteristics of Stratum IV were consistent across the existing and proposed areas.

Thus, the Commission could reasonably conclude that samples from the existing area provided a

sufficient basis to evaluate the permeability and horizontal hydraulic conductivity of Stratum IV

beneath the proposed expansion area. See also id. § 330.56(d) (approving submission of “previously

prepared documents”).

                Appellants also argue that, even if it was permissible for Waste Management to rely

on prior testing and samples from the existing landfill area, it could not reasonably rely on those tests

here because Waste Management’s own geologist testified that they were unreliable. Waste

Management’s geologist Janet Meaux characterized the piezometers from which the Stratum IV data

were derived as being of “questionable construction,” and she also questioned data from those

devices. Based upon this evidence, appellants contend that there was “insufficient data to conclude



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 that the upper portion of Stratum IV—which will be excavated and have waste placed in it—is not

 a water-bearing zone that needs to be monitored for the movement of contaminants.” They also

 contend that the evidence showed that the upper portions of Stratum IV had signs of “weathering”

 and “fracturing” similar to Stratum III, which could provide a pathway for groundwater to travel.9

               Meaux, however, testified that Waste Management’s application did not rely on data

that she considered unreliable.10 After explaining her methodology at length, she testified that, in her

professional opinion, the proposed groundwater monitoring system was adequate.11 Further, the


        9
            Meaux defined a “fracture” as referring to a “very small crack” and “weathering” as
 referring to a part of the core that was softer than other parts or that “just looked more weathered.”
 Meaux testified that ten out of twenty-four boring samples taken in the proposed expansion area
 showed fractures in Stratum IV. Meaux also testified that “a very small amount” of water was found
 in some piezometers from Stratum IV in the existing landfill area when the piezometers were first
 installed but that she was unsure of the source of the water.
        10
           Meaux testified that the tests were reliable to show the horizontal hydraulic conductivity
 for Stratum IV. She testified at the hearing as to this testing:

        Q.      . . . So all of the horizontal hydraulic conductivity numbers in this
                application that are assigned to Stratum IV, we should consider as unreliable.
                Correct?

        A.      Well, again, they do represent the sediments – the transmissivity of the
                sediments. We just don’t know where the water came from that was used in
                the tests.
        11
            She opined, “The proposed monitoring system was conservatively designed to be
 protective of human health and the environment and to provide early detection of any release of
 contaminants from the facility.” She also testified concerning the basis of her opinion:

        To summarize, the locations, numbers, and depths of the monitoring wells proposed
        for the Mesquite Creek Landfill groundwater monitoring system were selected after
        detailed and thorough considerations of the stratigraphy and hydrogeology underlying
        the site. The proposed wells will be strategically positioned so as to monitor the
        groundwater passing beneath the facility in the uppermost water-bearing zone. This
        zone, Stratum III, would provide the most timely indication of a release of

                                                  21
Commission’s regulations do not require groundwater monitoring in every stratum that will be

excavated; they require monitoring “to yield representative groundwater samples from the uppermost

aquifer.” See 30 Tex. Admin. Code § 330.231(a), (a)(2). Meaux testified: “In our investigation we

found no water bearing fractures in Stratum IV.” She also testified: “There was no evidence of water

movement in Stratum IV. All our cores showed it was dry.” Other experts similarly testified that

Stratum IV was not an aquifer or an uppermost aquifer. See id. § 330.2(6) (“aquifer” defined), (158)

(the “uppermost aquifer” defined).

               We overrule appellants’ third issue.


Operating Hours

               In their final issue, appellants argue that the Commission erred by refusing to limit the

landfill’s operating hours to those named in the settlement agreement between Waste Management

and Guadalupe County. Specifically, appellants challenge the Commission’s finding of fact 99 and

its conclusion of law 14, which state:


       Finding of Fact

       99.     Applicant’s waste acceptance hours should be limited to those stated in its
               agreement with Guadalupe County.




        constituents from the landfill. Any liquid released from the landfill would be
        expected to percolate vertically through the vadose zone until the water-bearing zone
        of Stratum III is encountered, since there is no horizontal gradient driving flow
        laterally through the unsaturated soil. If a release from the landfill occurred in the
        few locations where the base grades are in Stratum IV, there would be little potential
        for migration, due to the low hydraulic conductivity of Stratum IV, which is a
        confining bed.

                                                  22
       Conclusion of Law

       14.     The facility’s waste acceptance hours should be Monday through Friday from
               4:00 a.m. to 8:00 p.m. and Saturday from 4:00 a.m. to 3:00 p.m., unless an
               emergency requires extended waste acceptance hours. Transportation of
               materials on- and off-site and operation of heavy equipment should be allowed
               Monday through Saturday, from 4:00 a.m. to 9:00 p.m., and on Sunday
               5:00 a.m. to 9:00 p.m. Other activities should not be limited to specified hours
               and may be conducted by the facility, as necessary, at any time.


Appellants contend that the challenged finding of fact and conclusion of law are arbitrary and

capricious and unsupported by substantial evidence.

               Guadalupe County was initially a party to the administrative proceeding, but it reached

a settlement with Waste Management. The settlement agreement provided that the landfill “operation

hours” were to be from “4:00 a.m. to 8:00 p.m., Monday through Friday and 4:00 a.m. through

3:00 p.m. on Saturday.” As part of the settlement agreement, Guadalupe County withdrew its protest

and request for party status. In its order, the Commission approved “waste acceptance hours” that

match the agreed hours in the settlement agreement but approved longer hours for other operations

at the landfill. See 30 Tex. Admin. Code § 330.118(a) (Facility Operating Hours) (requiring site

operating plan to “specify the waste acceptance hours and the operating hours when materials will

be transported on or off site, and the hours when heavy equipment may operate”).

               Appellants do not claim that the operating hours ultimately imposed by the

Commission were impermissible for any reason other than their contention that the hours authorized

by the Commission diverged from the settlement agreement. In their brief, appellants also state that

they are unaware of authority to support their position that the Commission was bound to the




                                                 23
settlement agreement, but they contend that allowing state agencies to depart from settlement

agreements like the one at issue here “would act as a powerful disincentive to settlements.”

               Even if we assume without deciding that the operating terms in the order diverge from

the settlement agreement, however, the Commission was not required to include the terms of the

settlement agreement in its order approving the application. See Citizens Against Landfill Location

v. Texas Comm’n on Envtl. Quality, 169 S.W.3d 258, 273 (Tex. App.—Austin 2005, pet. denied)

(concluding that Commission did not possess authority or duty to enforce higher standard set forth in

settlement agreement); see, e.g., BML Stage Lighting, Inc. v. Mayflower Transit, Inc., 14 S.W.3d 395,

400 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (contracting parties generally cannot bind

non-parties without their consent). Neither the Commission nor appellants were parties to the

settlement agreement, and Waste Management and Guadalupe County did not seek to have the terms

of the settlement agreement incorporated into the permit amendment for the landfill. Waste

Management also supported its requested hours for different types of operations with evidence that

supported longer hours for operations other than waste acceptance.

               We therefore conclude that the challenged finding of fact and conclusion of law as to

operating hours were not arbitrary or capricious and were supported by substantial evidence. We

overrule appellants’ fourth issue.

                                         CONCLUSION

               For the reasons stated above, we affirm the district court’s order affirming the

Commission’s order.




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                                          __________________________________________

                                          Melissa Goodwin, Justice

Before Justices Pemberton, Goodwin, and Field

Affirmed

Filed: July 16, 2014




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