                                                                                 ACCEPTED
                                                                            03-14-00718-CV
                                                                                   4925658
                                                                  THIRD COURT OF APPEALS
                                                                             AUSTIN, TEXAS
                                                                       4/16/2015 7:57:20 PM
                                                                          JEFFREY D. KYLE
                                                                                     CLERK
                         NO. 03-14-00718-CV

                  IN THE COURT OF APPEALS          FILED IN
                                            3rd COURT OF APPEALS
              FOR THE THIRD DISTRICT OF TEXAS, AUSTIN, TEXAS
                      AT AUSTIN, TEXAS      4/16/2015 7:57:20 PM
                                                       JEFFREY D. KYLE
                                                            Clerk
    CITIZENS AGAINST THE LANDFILL IN HEMPSTEAD; MICHAEL
      MCCALL; WAYNE KNOX; AND THE CITY OF HEMPSTEAD,
                       Plaintiffs/Appellants,
                                  v.
     TEXAS COMMISSION ON ENVIRONMENTAL QUALITY AND
           PINTAIL LANDFILL, L.L.C., Defendants/Appellees.

                       From 201st District Court,
                         Travis County, Texas

 APPELLANTS CITIZENS AGAINST THE LANDFILL IN HEMPSTEAD,
  MICHAEL MCCALL, WAYNE KNOX, AND CITY OF HEMPSTEAD’S
                      REPLY BRIEF


KELLY HART & HALLMAN LLP               HANCE SCARBOROUGH, LLP
Monica M. Jacobs                       Terry L. Scarborough
State Bar No. 24007433                 State Bar No. 17716000
Diana L. Nichols                       Michael L. Woodward
State Bar No. 00784682                 State Bar No. 21979300
301 Congress Avenue, Suite 2000        V. Blayre Pena
Austin, TX 78701                       State Bar No. 24050372
Telephone: (512) 495-6400              Wesley P. McGuffey
Facsimile: (512) 495-6401              State Bar No. 24088023
                                       400 W. 15th Street, Ste. 950
ATTORNEYS FOR THE                      Austin, TX 78701
CITY OF HEMPSTEAD                      Telephone: (512) 479-8888
                                       Facsimile: (512) 482-6891

                                       ATTORNEYS FOR APPELLANTS
                                       CITIZENS AGAINST THE LANDFILL
                                       IN HEMPSTEAD, MICHAEL
                                       MCCALL, AND WAYNE KNOX

                    ORAL ARGUMENT REQUESTED
                          TABLE OF CONTENTS

TABLE OF CONTENTS ……………………………………………..……………2

INDEX OF APPENDICIES………………………………………………………...3

INDEX OF AUTHORITIES ……………………………………………………….4

ARGUMENT ………………………………………………………………………8

   THE RULE INTERPRETATIONS ADVANCED BY APPELLEES
   IMPERMISSIBLY CONTRADICTS THE PLAIN LANGUAGE OF THE
   RULES THEY CLAIM TO INTERPRET.....................................................8

   A.    Straight From the Horse’s Mouth: A Concise Statement of Appellants’
         Argument……………………………………………………………..9

   B.    A Requirement Must Require Something: Appellees Impermissibly
         Interpret 30 Texas Administrative Code § 330.9(f) As Applying to Any
         Transfer Station/Waste Separation Facility Only If Its Requirements
         Are Met……………………………………………………………..11

   C.    Appellees Impermissibly Interpret 30 Texas Administrative Code
         § 330.9(b)(3), Arguing Anything Besides the Clear, Unambiguous
         Language of the Rule..……………………………………………….14

         1.     TCEQ’s Argument on Rule 330.9(b)(3) Misses the Point,
                Misconstrues the Argument, and Exudes Misunderstanding.…16

         2.     It’s Not a Sasquatch:   A Generally Applicable Permit
                Requirement Does Exist………………………………………19

         3.     Rules are Rules: TCEQ Does Not Have the Authority to Violate
                or Otherwise Ignore Its Rules.………………………………..22

         4.     Don’t Believe the Hype: The Transfer Station/Materials
                Recovery Facility Does Not and Could Not Qualify for a Permit
                Exemption Under Rule 328, Because a Waste Stream Is Not
                Recyclable Material…………………………………………..24

                                        2
             5.   Not All Type V Facilities Are Equal. Transfer Facility ≠
                  Incinerator ≠ Material Recovery Facility……………………26

     THE TCEQ DENIED AFFECTED PERSONS DUE PROCESS BY
     AUTHORIZING THE FACILITY THROUGH REGISTRATION RATHER
     THAN A PERMIT.………………………………………………………..28

     ALWAYS KEEP YOUR WORD: THE REGISTRATION SHOULD BE
     REVERSED BECAUSE TCEQ ALLOWED AN EXCESSIVE NUMBER
     OF NOTICES OF DEFICIENCY WELL BEYOND ITS PUBLICLY
     PRONOUNCED POLICY.………………………………………………...30

PRAYER ………………………………………………………………………….35

CERTIFICATE OF COMPLIANCE ……………………………………………..36

CERTIFICATE OF SERVICE ……………………………………………………37




                         INDEX OF APPENDICIES

Appendix A        Notices of Deficiencies

Appendix B        MSW Permit 2382
                  MSW Permit 2379




                                       3
                        INDEX OF AUTHORITIES

Statutes

Texas Health and Safety Code

        § 361 ………………………………………………………………………19

        § 361.061..……………………………………………..…………………..19

        § 361.086(a)….……………………….………………..………………….19

        § 361.0861……………………………………………..……………….13, 20

        § 361.088……………………………………………………...………..29, 30

        § 361.0665……………………………………………………………...29, 30

        § 361.0666……………………………………………………………...29, 30

        § 361.067…………………………………………………………….…29, 30

        § 361.079……………………………………………………………….29, 30

        § 361.0791………………………………………………….………..…29, 30

        § 361.081……………………………………………………………….29, 30

        §361.092………………………………………………………………..14, 20

        § 361.111(a)(4)……………………………………………………………..13

        § 361.111(a)(1)-(4)…………………………………………………………20

Rules

30 Texas Administrative Code

        § 55.201(b)(4)………………………………………………………………29



                                 4
§ 55.203…………………………………………………………………….29

§ 80.109(a)………………………………………………………………….29

§ 80.109(b)(5)………………………………………………………………29

§ 312………………………………………………………………………..23

§ 328………………………………………………………………………..24

§ 328.2(3)…………………………………………………………………...26

§ 328.2(6)…………………………………………………………………...26

§ 328.4……………………………………………………………………...25

§ 328.4(d) ………………………………………………………………24, 26

§ 330………………………………………………………………………..24

§ 330(88)……………………………………………………………………19

§ 330.3……………………………………………………………………...18

§ 330.3(a) …………………………………………………………………..18

§ 330.3(117)……………………………………………………………..…17

§ 330.3(122) ………………………………………………………………..25

§ 330.3(157)…..…………………...……………………………..8, 15, 18, 27

§ 330.3(174)……………………………………………………...8, 12, 15, 18

§ 330.5(a)(3)………………………………………………………………..27

§ 330.7……………………………………………………………………...25

§ 330.7(a)….………………………...……………….........................8, 20, 21



                            5
        § 330.9………………………………………………….11, 13, 18, 20, 21, 25

        § 330.9(b) ………………………………………………………………21, 27

        § 330.9(b)(3) …………………………………………8, 9, 14, 15, 16, 17, 19

        § 330.9(c) …………………………………………………………………..13

        § 330.9(f) …………………………………………………8, 10, 11, 12, 13, 14

        § 330.9(f)(1) & (2) …………………………………………………………10

        § 330.9(j) …………………………………………………………………..13

        § 330.9(b)–(p)………….……………………………….…………………..21

        § 330.11…………………………………………………………………….20

        § 330.13…………………………………………………………………….20

        § 330.25…………………………………………………………………….20

        § 332………………………………………………………………………..24

Cases

CenterPoint Energy Houston Elect., LLC v. PUC
      408 S.W. 3d 910 (Tex. App. – Austin 2013, pet denied)…………....8, 13, 22

County of Dallas v. Wiland,
     216 S.W.3d 344, 347 (Tex. 2007)…………………………………….........29

Alton McDaniel v. Texas Natural Resource Conservation Commission
      982 S.W.2d 650; 1998 (Tex. App. – Austin 1998, pet. denied)…………23, 24

PUC v. Gulf States Utilities Co.
     809 S.W. 2d 201 (Tex. 1991) ………………………………………..8, 13, 22

Rodriguez v. Service Lloyds Ins. Co.,
      997 S.W.2d 248, 254 (Tex. 1999)………………………………………….18


                                     6
Tex. Comm’n on Envtl. Quality v. Kelsoe
      286 S.W.3d 91 (Tex. App. – Austin 2009……………….…………………32

Tex. Dept. of Transp.. V. Needham
      S.W. 3d 314, 318 (Tex. 2002)………………………………………………18

TGS-NOPEC Geophysical Co. v. Combs
     340 S.W.3d 432, 439 (Tex. 2011) …………………………………………..18

Other Authority

31 Tex. Reg. 2506…………………………………………………………11, 14, 21

31 Tex. Reg. 2548……..………………………………………………………20, 21




                             7
TO THE HONORABLE COURT OF APPEALS:

       Appellants Citizens Against the Landfill in Hempstead (“CALH”) and City of

Hempstead (“City”) file this Reply Brief of Appellants, and in support, state as

follows:

                                         ARGUMENT

I.     THE RULE INTERPRETATIONS ADVANCED BY APPELLEES
       IMPERMISSIBLY CONTRADICT THE PLAIN LANGUAGE OF THE
       RULES THEY CLAIM TO INTERPRET.

       At the heart of this matter are four (or five) TCEQ rules.1 In their briefs,

Appellees present their interpretations of two TCEQ registration rules at issue, 30

Texas Administrative Code § 330.9(b)(3) and 30 Texas Administrative Code

§ 330.9(f). Appellees’ interpretations are impermissible because they contravene

the plain language of the rule.2 Further, Appellees’ interpretations are impermissible

because they are plainly erroneous and inconsistent with the regulation or its

underlying statute.

       Largely avoiding the clear, unambiguous language of the applicable rules,

Appellees attempt to support their impermissible interpretations by arguing a


1
  30 Tex. Admin. Code § 330.9(b)(3) (authorizing registration for certain transfer stations); 30 Tex.
Admin. Code § 330.9(f) (authorizing registration for certain transfer stations/material recovery
facilities); 30 Tex. Admin. Code § 330.3(157) (defining transfer station); 30 Tex. Admin. Code
§ 330.3(174) (defining waste-separation/recycling facility/material recovery facility); 30 Tex.
Admin. Code § 330.7(a) (relating to and titled “permit required”).
2
  When an agency fails to follow the clear, unambiguous language of its own regulation, the court
must reverse the agency’s action as arbitrary and capricious. PUC v. Gulf States Utilities, 809
S.W.2d 201, 207 (Tex. 1991); CenterPoint Energy v. PUC, 408 S.W.3d 910, 917.

                                                 8
number of points that are not at issue or serve only to confuse the issue. These

arguments often miss the point, misconstrue Appellants’ argument, and fail to

acknowledge the applicability of regulatory definitions mandated by TCEQ rule.

Appellees’ arguments ultimately fail because there is a permit requirement in TCEQ

rules and in the controlling statute, TCEQ cannot violate or ignore its rules, the

permit and registration exception for source-separated recyclable materials does not

apply to this facility, and a transfer station is not the equivalent to any other Type V

processing facility. Not only do Appellees’ arguments fail, their interpretation

endangers the proper permitting of solid waste processing activities across our state.

      A.     Straight From the Horse’s Mouth:              A Concise Statement of
             Appellants’ Argument.

      Appellants’ first argument is often misrepresented in Appellees’ briefs.

Rather than refuting each occurrence, Appellants’ argument is concisely presented

below for convenient comparison.

      TCEQ failed to follow the clear, unambiguous language of at least four of its

regulations when it issued Registration No. 40259 for Pintail’s transfer

station/material recovery facility (“Pintail’s Facility” or “Facility”). First, TCEQ

failed to follow Rule 330.9(b)(3), the provision under which Applicant claimed

authority for registration.   This rule expressly applies only to transfer station

facilities, and this rule was violated when TCEQ allowed it to be used as registration

authority for a materials recovery operation. Second, TCEQ failed to follow Rule

                                           9
330.9(f), which allows registration for any transfer station facility with materials

recovery operations that meets the 10/50 requirements.3 It is undisputed that the

Facility is a transfer station with materials recovery operations, and that the 10/50

requirements were not met. This is the only registration authorization available for

materials recovery activities at a transfer station without an already permitted landfill

attached. Thus, TCEQ’s refusal to apply this rule’s requirements is impermissible.

       Third, TCEQ failed to follow the clear, unambiguous language of its own

definitions. TCEQ rules specifically define both types of facilities at issue, transfer

stations and waste separation/recycling facilities (also referred to as a materials

recovery facilities), and these facilities engage in different waste management

activities. TCEQ is required to follow its definitions, which are codified as TCEQ

rules. Because TCEQ failed to follow the plain language of its rules, the registration

of this Facility must be reversed.

       It should be noted that Appellants are not challenging the authority of TCEQ

to issue registrations. Appellants fully acknowledge TCEQ’s authority to register

certain transfer stations, to register certain transfer stations with materials recovery

operations, to register certain recycling facilities, and to register any other type of

waste management activity that is allowed by law. In fact, permissible TCEQ


3
 The so-called 10/50 requirements are found at 30 Texas Administrative Code § 330.9(f)(1)&(2).
They require a minimum 10% recovery rate and disposal at an existing permitted facility within
50 miles in order to qualify for registration.

                                             10
registrations form the heart of this case. The key is, when exercising its authority,

TCEQ must follow its rules. In this case it did not, so reversal is required.

         B.     A Requirement Must Require Something:                Appellees
                Impermissibly Interpret 30 Texas Administrative Code § 330.9(f)
                As Applying to Any Transfer Station/Waste Separation Facility
                Only If Its Requirements Are Met.

         The first relevant rule at issue is 330.9(f). Rule 330.9(f) is intended to allow

a qualifying transfer station/material recovery facility to obtain a registration rather

than a permit.4 The rule reads, “(f) A registration is required for any new MSW

Type V transfer station that includes a material recovery operation that meets all of

the following requirements. (1) Materials recovery. [10% recovery rule]. (2)

Distance to landfill. [50 mile disposal rule].”

         Upon adoption of 30 Texas Administrative Code § 330.9 to allow registration

instead of permitting, TCEQ recognized and pronounced that the rule lists all of the

permitting exceptions that are eligible for registration. 31 Tex. Reg. 2506 (“The

commission adopts new §330.9, Registration Required, to list all MSW management

activities that are exempt from permitting requirements but that still require

commission approval by registration.”)

         Appellees do not rely on 330.9(f) as registration authority, and Appellees’

interpretation of 330.9(f) correctly bars its use for registration of this facility.



4
    See 31 Tex. Reg. 2506.

                                            11
However, their interpretation continues to ignore the language of the rule,

specifically, the word “any” and the defined term, “material recovery operation.”

Appellees argue that the 10/50 rule requirements of 330.9(f) do not apply to this

transfer station/materials recovery facility, even though the rule expressly applies to

“any new MSW Type V transfer station that includes a material recovery

operation….” Appellees argue that the requirements of Rule 330.9(f) (the 10/50

rule) only apply to a transfer station/materials recovery facility that already meets

the 10/50 rule.5 In other words, Appellees argue that if the rule’s requirements are

not met, the rule does not apply.

       In its best light, Appellees’ interpretation means that if rule 330.9(f)’s

requirements are not met, then the rule does not allow registration of a transfer

station/materials recovery facility. Appellees argue, however, that if the rule’s 10/50

requirements are not met, the facility may simply be registered as a transfer station,

despite the fact that it is actually a transfer station and material recovery facility.

Appellees’ interpretation ignores the word “any” and the term “material recovery,”

which is defined in rule 330.3(174).6 Because Appellees’ interpretation contravenes




5
  Pintail’s Brief at 21-22; TCEQ’s Brief at 16.
6
  30 Tex. Admin. Code 330.3(174) (“Waste-separation/recycling facility--A facility, sometimes
referred to as a material recovery facility, in which recyclable materials are removed from the
waste stream for transport off-site for reuse, recycling, or other beneficial use.”)

                                              12
the clear, unambiguous language of the rule itself, it is impermissible.7 However,

even if their interpretation did not contravene the rule’s language, the registration

would fail because there is no other applicable registration authority available.

       Appellants do concede that registration for waste separation/material

recovery/recycling activities could be properly granted through a different

registration provision, but those provisions must expressly apply to those activities,

and cannot apply without a preexisting permitted landfill under current rules. In

order to qualify waste separation/recycling/materials recovery activities for

registration, one of the specific provisions allowing these specific activities to be

registered must be met.

       These statutorily prescribed registration provisions available for recycling

activities are listed in Rule 330.9, and include 330.9(c) (for registration of a waste

separation/recycling facility within the boundaries of an existing, existing permitted

MSW landfill, with statutory authority originating in Texas Health and Safety Code

361.0861), 330.9(f) (for a transfer station that includes a material recovery operation

and meets the 10/50 requirements, with statutory authority originating in Texas

Health and Safety Code 361.111(a)(4)), and 330.9(j) (for certain material recovery

operations from an existing landfill, with statutory authority originating in Texas


7When an agency fails to follow the clear, unambiguous language of its own regulation, the court
must reverse the agency’s action as arbitrary and capricious. Gulf States Utilities, 809 S.W.2d at
207 (Tex. 1991); CenterPoint, 408 S.W.3d at 917.

                                               13
Health and Safety Code 361.092). TCEQ Rule 330.9(f) is the only provision

allowing materials recovery that could have been utilized, because there is not an

existing landfill. Because the requirements of 330.9(f) were not met, a registration

is not available and this facility requires a permit.

      C.     Appellees Impermissibly Interpret 30 Texas Administrative Code
             § 330.9(b)(3), Arguing Anything to Distract from the Clear,
             Unambiguous Language of the Rule.

      The second relevant registration rule at issue is 330.9(b)(3). Appellees

purport to rely on this rule for registration authority. Rule 330.9(b)(3) is intended to

allow qualifying transfer stations to obtain a registration rather than a permit. See

31 Tex. Reg. 2506 (“The commission adopts new §330.9, Registration Required, to

list all MSW management activities that are exempt from permitting requirements

but that still require commission approval by registration.”) The rule reads,

      (b) A registration is required for an MSW transfer station facility that
      is used in the transfer of MSW to a solid waste processing or disposal
      facility from any of the following: … (3) a facility used in the transfer
      of MSW that transfers or will transfer 125 tons per day or less;

30 Tex. Admin. Code § 330.9(b)(3).

      Appellees argue that a transfer station that includes a materials recovery

operation may be registered under Rule 330.9(b)(3), even though the rule expressly

applies only to MSW transfer station facilities.             Appellees interpretation

impermissibly expands the scope of Rule 330.9(b)(3) in contravention of the rule’s

clear, unambiguous language, because Rule 330.9(b)(3) expressly applies only to

                                           14
MSW transfer station facilities. Transfer station facilities are defined by rule, and

are separately defined from materials recovery facilities. There is a clear distinction

between these types of waste processing activities. See 30 Tex. Admin. Code §

330.3(157) (defining transfer station); 30 Tex. Admin. Code § 330.3(174) (defining

materials recovery facility/waste separation facility/recycling facility).8

       All of the Appellees interpretations contravene the plain language, “transfer

station facility,” which is a term defined by rule. Additionally, the mere fact that a

facility “is used in the transfer” of waste does not eliminate the rule’s express

application to “transfer station” facilities only, and it does not change the regulatory

definition of “transfer station.” Given the rule’s express application to “transfer

station” facilities, the words “is used in the transfer” serve the purpose of describing

the activities of a transfer station consistently with its regulatory definition. There

is no indication that the words “is used in the transfer” expand the applicability of

rule 330.9(b)(3), and such a reading contravenes the clear, unambiguous language

of TCEQ rules 330.9(b)(3), 330.3(157), and 330.3(174).




8
  30 Tex. Admin. Code § 330.3(157) (“Transfer station--A facility used for transferring solid waste
from collection vehicles to long-haul vehicles (one transportation unit to another transportation
unit). It is not a storage facility such as one where individual residents can dispose of their wastes
in bulk storage containers that are serviced by collection vehicles.”); 30 Tex. Admin. Code
§ 330.3(174) (Waste-separation/recycling facility--A facility, sometimes referred to as a material
recovery facility, in which recyclable materials are removed from the waste stream for transport
off-site for reuse, recycling, or other beneficial use.)

                                                 15
      Appellees offer a number of justifications for violating the plain language of

TCEQ rules, but they miss the mark. The arguments largely dodge the language of

the rules at issue, and upon inspection, they do not justify Appellees’ proposed

interpretations.   Their arguments fail because: 1) TCEQ’s argument fails to

distinguish between transfer activities and materials recovery/waste separation

activities, fails to acknowledge the applicability of TCEQ rules’ definitions, and

even inadvertently admits that the claimed registration authority does not apply by

stating that no MSW will be transferred at the facility; 2) a permit is generally

required for waste management activities unless an exception applies; 3) TCEQ

cannot violate or ignore its rules; 4) the permit and registration exception for source-

separated recyclable materials does not and could apply to this facility because it

accepts a waste stream; and 5) a transfer station is not equivalent to any Type V

processing facility, and Appellees’ interpretation endangers the proper permitting of

all other Type V solid waste processing facilities.

             1.     TCEQ’s Argument on Rule 330.9(b)(3) Misses the Point,
                    Misconstrues the Argument, and Exudes Misunderstanding.

      TCEQ’s argument regarding rule 330.9(b)(3) completely misses the mark.

TCEQ’s argument is fundamentally flawed because it misconstrues Appellants’

argument as complaining that no processing or storage may occur at a transfer




                                          16
station.9 Appellants do not challenge registration of all processing activities, but

only challenge registration of materials recovery/waste separation/recycling

activities at a transfer station using Rule 330.9(b)(3) as justification. In reality,

transfer activities and materials recovery/waste separation/recycling activities are

each a subset, or different type of waste processing activity, which is a much more

broadly defined term.10 Even incineration of waste is a processing activity.11

       TCEQ argued that processing activities are incidental and necessary to operate

a transfer station.12 This argument has very little relevance because processing is

such a broad term. Because the scope of the term “processing” includes both transfer

activities and material recovery activities, it follows that processing would be a

necessary activity to transfer waste (because transfer is a form of processing). The

more relevant observation is that materials recovery/waste separation/recycling

activities (another distinct form of processing) are most certainly not necessary to




9
  TCEQ Brief at 13.
10
   30 Tex. Admin. Code § 330.3(117) (“Processing--Activities including, but not limited to, the
extraction of materials, transfer, volume reduction, conversion to energy, or other separation and
preparation of solid waste for reuse or disposal, including the treatment or neutralization of waste,
designed to change the physical, chemical, or biological character or composition of any waste to
neutralize such waste, or to recover energy or material from the waste, or render the waste safer to
transport, store, dispose of, or make it amenable for recovery, amenable for storage, or reduced in
volume.”).
11
   Id.
12
   TCEQ Brief at 15.

                                                 17
the transfer of waste from one transportation unit to another transportation unit, nor

are those activities incidental to transfer activities.13

        Further, TCEQ appears to misrepresent the applicability of its own

definitions. On page 13 of is brief, TCEQ appears to imply that definitions of MSW

management activities in Rule 330.3 (such as transfer station and waste

separation/materials recovery/recycling facility) do not apply to registration Rule

330.9 because they appear in a different subchapter.14 This is flat wrong. Not only

are the definitions and registration rules in the same subchapter (Subchapter A), the

definitions would apply even if they were not. The definitions of Rule 330.3 apply

to the entire Chapter 330 regarding municipal solid waste. See 30 Tex. Admin. Code

§ 330.3(a) (stating “[t]his section contains definitions for terms that appear

throughout this chapter.”). The TCEQ and reviewing courts are bound to construe

these terms by their regulatory definitions only.15




13
   See 30 Tex. Admin. Code § 330.3(157); see also 30 Tex. Admin. Code § 330.3(174).
14
   TCEQ Brief at 13 (stating “Appellants support their argument by citing to various definitions of
MSW management in other subchapters of the MSW rules. Appellants’ interpretation of the
Commission’s rules is unreasonable…”).
15
   Tex. Dept. of Transp. V. Needham, 82 S.W.3d 314, 318 (Tex. 2002) (“But if a statute defines a
term, a court is bound to construe that term by its statutory definition only.”) (emphasis added);
see also TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011) (“If a statute
… assigns a particular meaning to a term, we are bound by the statutory usage.”); id. at 438 (“We
interpret administrative rules, like statutes, under traditional principles of statutory construction.”);
Rodriguez v. Service Lloyds Ins., 997 S.W.2d 248, 254 (“We construe administrative rules, which
have the same force as statutes, in the same manner as statutes.”).

                                                   18
       Finally, in another section of TCEQ’s brief, TCEQ inadvertently admits by

implication that the registration authority of Rule 330.9(b)(3) does not apply at all,

because Pintail’s facility “will not accept municipal solid waste” and will only accept

construction and demolition waste.16 Because Rule 330.9(b)(3) applies only to a

“MSW transfer station facility that is used in the transfer of MSW,” TCEQ has

inadvertently refuted its own argument that the registration authority of Rule

330.9(b)(3) applies to Pintail’s facility. TCEQ’s statement, however, is inaccurate.

MSW is broadly defined, and does include construction and demolition waste.17

              2.      It’s Not a Sasquatch: A Generally Applicable Permit
                      Requirement Does Exist.

       TCEQ’s brief also implies that there is no general permitting requirement in

the statute or in its rules, and this too is false. TCEQ has authority to regulate solid

waste activities, but its authority is not unfettered. It is restricted by the terms of the

controlling Texas Health and Safety Code Chapter 361, and by TCEQ rules. Texas

Health & Safety Code § 361.061 grants TCEQ the power to require and issue

permits, while Texas Health & Safety Code § 361.086(a) expressly requires a

separate permit at each solid waste facility. The statute states, “[e]xcept as provided

in Subsection (d) [which does not apply here], a separate permit is required for each

16
  TCEQ Brief at 10.
17
   30 Tex. Admin. Code § 330.3(88) (“Municipal solid waste--Solid waste resulting from or
incidental to municipal, community, commercial, institutional, and recreational activities,
including garbage, rubbish, ashes, street cleanings, dead animals, abandoned automobiles, and all
other solid waste other than industrial solid waste.”)

                                               19
solid waste facility.” Read together, these sections require TCEQ permits at solid

waste facilities, unless an exception applies. Exceptions to the permit requirement

that allow or mandate registration are codified in the Health & Safety Code and have

been duplicated in the TCEQ rules.18 A permit is required if no exception applies.

       TCEQ’s brief denies the existence of a general permitting requirement. This

is surprising, because this permit requirement has been repeatedly recognized and

documented by TCEQ in almost every imaginable way. It has been codified in

TCEQ rules, recited in Texas Register notices, and pronounced in TCEQ guidance

documents.     TCEQ rule 330.7(a) codifies the general permit requirement and

requires a permit unless an exception to the permitting requirement is applicable to

the activities of the facility.19     These permitting exceptions allow solid waste

management activities to be authorized by registration, notification, or to be

completely exempt from permitting, registration, or notification.20

       TCEQ acknowledged the permitting requirement applicable to processing

facilities, including transfer stations, when it refused to remove the word “transfer”

from the definition of “processing.” See 31 Tex. Reg. 2548 (reinserting “transfer”

back into the definition of “processing” to keep the permitting requirement for




18
   See, e.g., Tex. Health & Safety Code 361.0861; Tex. Health & Safety Code 361.111(a)(1)–(4);
Tex. Health & Safety Code 361.092.
19
   30 Tex. Admin. Code § 330.7(a) (relating to title, “Permit Required”).
20
   30 Tex. Admin. Code §§ 330.9, 330.11, 330.13, and 330.25.

                                             20
transfer facilities).21 TCEQ also recognizes the permitting requirement applicable

to transfer stations in its relevant regulatory guidance document, which plainly states

that a permit is required if a transfer station does not qualify for registration.22

       There are limited exceptions to the permitting requirement that allow MSW

management activities to be authorized by registration, and these exceptions are

specifically enumerated in TCEQ’s registration rule 330.9.23 Upon adoption of

Rule 330.9 to allow registration instead of permitting, TCEQ pronounced that the

rule lists all of the permitting exemptions that are eligible for registration: “The

commission adopts new §330.9, Registration Required, to list all MSW management

activities that are exempt from permitting requirements but that still require

commission approval by registration.” (emphasis added).24 The generally applicable

permit requirement appears in the Health & Safety Code, the TCEQ rules, the Texas


21
   The comment and response states in full: “Comment: HCPES [Harris County Attorney’s Office
and Harris County Public Health and Environmental Services, Pollution Control Division]
commented that the proposed deletion of the term “transfer” from the definition of processing
would change the meaning of §330.7(a) relating to Permit Required. By this proposed definition
change, transfer stations would no longer be required to obtain permits to operate. HCPES
stated that by their nature, transfer stations require agency and public review of the
permitting process unless exempted due to a location on an existing landfill or if they meet
registration requirements under §330.9(b). Response: The commission agrees with this
comment and has reinserted the term “transfer” back into the definition of processing in
response to these comments and also to be consistent with THSC, §361.003, Definitions.” 31 Tex.
Reg. 2548 (emphasis added).
22
   See Initial Brief of Appellants, Appendix B (TCEQ Publication No. RG-469, Traditional
Municipal Solid Waste Disposal: A Guide for Local Governments (listing transfer station
registration exceptions in 330.9(b) and stating, “If none of these criteria can be met, a permit is
required”)).
23
   30 Tex. Admin. Code § 330.9(b)–(p).
24
   31 Tex. Reg. 2506 (emphasis added).

                                                21
Register, and TCEQ guidance documents. Given its frequent appearance in relevant

authority, TCEQ’s argument against a permit requirement must fail.

                 3.     Rules Are Rules: TCEQ Does Not Have the Authority to
                        Violate or Otherwise Ignore Its Rules.

          Appellees argue that TCEQ has broad regulatory authority, implying that this

authority gives the agency license to expand the applicability of Rule 330.9(b)(3)

beyond the regulatory definition of transfer station to include materials recovery

operations. Appellees also argue that TCEQ has authority to ignore Rule 330.9(f),

which expressly applies to any transfer station with a materials recovery operation.

Furthermore, Appellees necessarily argue that TCEQ is not bound by its regulatory

definitions.

          Appellees’ arguments fail because TCEQ must follow its rules, including

applicable definitions. The rules cannot be ignored; they cannot be selectively

applied. When an agency fails to follow the clear, unambiguous language of its own

regulation, the court must reverse the agency’s action as arbitrary and capricious.25

A rule’s plain language must be followed unless it is ambiguous.26 If a rule is

ambiguous or leaves room for policy determinations, a court may not defer to an




25
     Gulf States Utilities, 809 S.W.2d at 207 (Tex. 1991); CenterPoint, 408 S.W.3d at 917.
26
     CenterPoint, 408 S.W.3d at 916.

                                                 22
agency’s interpretation that is plainly erroneous or inconsistent with the regulation

or its underlying statutes.27

         Appellees cite McDaniel v. TNRCC as support for the proposition that TCEQ

has the authority to issue registrations, but again, that issue is not in dispute here.

982 S.W.2d 650 (Tex. App.—Austin 1998, pet. denied).                     Appellants fully

acknowledge TCEQ’s authority to issue registrations. The point is that the TCEQ

must follow its rules when issuing a registration. McDaniel is an example of the

agency following its rules that were promulgated for registration: “[t]he TNRCC

acted in compliance with its own properly promulgated rules and issued the

requested registration.”28 However, the case is largely irrelevant because it involves

different registration rules (that were actually followed), different application

procedures, and different environmental concerns.             McDaniel is a case about

beneficial application of sewage sludge that properly qualified for registration under

the applicable “Sludge Use, Disposal, and Transportation” rules, which are in an

entirely different chapter of TCEQ’s rules. 982 S.W.2d 650 (Tex. App.—Austin

2009, pet. denied); see also 30 Tex. Admin. Code § 312.

         Worth noting, Appellee Pintail’s brief fails to mention the crucial fact that the

TNRCC’s registration rules were followed in McDaniel.                   This omission is



27
     Id.
28
     McDaniel v. TNRCC, 982 S.W.2d 650, 653 (Tex. App.—Austin 2009, pet. denied).

                                              23
misleading, because the instant case is squarely about whether TCEQ followed its

applicable registration rules. Upon inspection, McDaniel supports the Appellant’s

position.      Like other applicable case law, it acknowledges and applies the

requirement that rules must be followed: “[w]hen an agency fails to follow its own

rules, reversal and remand is required if a showing of harm or prejudice is made.”29

Unlike in McDaniel, in this case TCEQ did not follow its rules.

                4.     Don’t Believe the Hype: The Transfer Station/Materials
                       Recovery Facility Does Not And Could Not Qualify for a
                       Permit Exemption Under Rule 328, Because a Waste Stream
                       Is Not Recyclable Material.

         This Facility is not exempt from permitting and registration requirements

under 30 Texas Administrative Code Chapter 328, because the Facility will accept

a stream of waste (which is not classified as recyclable material) and will separate

recyclable materials from that waste stream. Under the relevant rule, “[a] facility

that processes recyclable material that contains more than incidental amounts of non-

recyclable waste must obtain a permit or registration as applicable under Chapter

330 or Chapter 332 of this title unless the executive director approves its request for

alternative compliance.”30 The permitting and registration exception for facilities




29
     Id. at 654.
30
     30 Tex. Admin. Code § 328.4(d).



                                          24
processing recyclable material is completely inapplicable to this case and serves only

to cause confusion.

       A waste stream is not “recyclable material.” The permit and registration

exception under TCEQ rule 328.4 do not apply to this facility or this registration

because by its plain language, it addresses “recyclable material.” By definition,

“recyclable material” only ceases to be solid waste after it “has been recovered or

diverted from the nonhazardous waste stream” and is useful in the manufacture of

products.31 Because this Facility will accept a waste stream prior to separation of

recyclable materials out of that waste stream, it cannot qualify for the “recyclable

materials” permit exemption for its materials recovery/waste separation/recycling

facility. Guidance on TCEQ’s webpage confirms this interpretation of the rules by

stating, “[f]acilities that separate recyclable materials from a municipal solid waste

stream must be permitted or registered as a municipal solid waste processing facility

in accordance with 30 TAC Chapter 330, Section (§) 330.7 or 330.9” (emphasis in

original).32   As previously discussed, the Pintail facility does not qualify for

authorization by registration, so it must be permitted.


31
   30 Tex. Admin. Code § 330.3(122) (“Recyclable material--A material that has been recovered
or diverted from the nonhazardous waste stream for purposes of reuse, recycling, or reclamation,
a substantial portion of which is consistently used in the manufacture of products that may
otherwise be produced using raw or virgin materials. Recyclable material is not solid waste.
However, recyclable material may become solid waste at such time, if any, as it is abandoned or
disposed of rather than recycled, whereupon it will be solid waste with respect only to the party
actually abandoning or disposing of the material.”)
32
   C.R. at 505 (CALH and City’s Joint Motion for New Trial, page 13, Ex. 3).

                                               25
       Additionally, “incidental amounts,” as referenced in rule 328.4(d), is defined

in the rules. This definition also confirms that the exception applies only to source-

separated recyclable materials, or material that at the point of generation, was

separated, collected, and transported separately from MSW waste.33 Finally, Pintail

admits that the recyclable materials permitting and registration exception does not

apply to the Facility, and that it was not claimed as authority. Pintail’s brief admits

that Pintail anticipated processing “more than an incidental amount of waste,” and

therefore, the permitting and registration exception for recyclable materials could

not apply.34 However, Pintail completely fails to inform the Court that it could not

have ever qualified for the permit and registration exemption because it will be

handling waste. Pintail’s Facility will accept a waste stream, not source-separated

recyclable materials used to make products. Because Pintail’s Facility is a materials

recovery facility that accepts a waste stream, it never could have qualified and this

provision is completely inapplicable and irrelevant to this case.

              5.      Not All Type V Facilities Are Equal. Transfer Facility ≠
                      Incinerator ≠ Material Recovery Facility.




33
   See 30 Tex. Admin. Code § 328.2(3) (defining incidental amounts of non-recyclable waste as
no more than 10% of any incoming load and requiring reasonable efforts to maintain source-
separation of recyclable material from waste); see also 30 Tex. Admin. Code § 328.2(6) (defining
source-separated recyclable material as being recyclable material that has been at the point of
generation, separated, collected, and transported separately from MSW waste).
34
   Pintail’s Brief at 20.

                                              26
        Appellee Pintail’s argument relies on an audacious assertion that the

permitting exception used to register the Type V transfer station activities (30 Tex.

Admin. Code §330.9(b)) can be expansively utilized as registration authority for

materials recovery waste processing activities at the facility, and even more broadly,

for any additional activities included within the definition of a Type V facility.

Appellee implies that all Type V facilities are subject to the same regulatory

permitting requirements, but they are not. Type V facilities include all kinds of solid

waste processing.        In addition to waste transfer activities, Type V facilities

incinerate, shred, grind, bale, salvage, separate, dewater, reclaim, store, and process

solid waste in other ways. Conversely, a transfer station is separately defined in

TCEQ rules, and its definition only includes waste transfer activities.35 A transfer

station is a very narrow subset of all Type V facilities that merely performs a waste

transportation function.36 In short, a Type V transfer station and a Type V facility

are not the same thing. A transfer station is just one kind of Type V facility.



35
   30 Tex. Admin. Code §330.3(157).
36
   30 Tex. Admin. Code §330.5(a)(3) (“MSW facility - Type V. Separate solid waste processing
facilities are classified as Type V. These facilities include processing plants that transfer,
incinerate, shred, grind, bale, salvage, separate, dewater, reclaim, and/or provide other storage or
processing of solid waste. Owners or operators shall follow the minimum design and operational
requirements prescribed in Subchapter E of this chapter (relating to Operational Standards for
Municipal Solid Waste Storage and Processing Units); Subchapter F of this chapter; Subchapter
G of this chapter; Subchapter H of this chapter, if required; Subchapter K of this chapter;
Subchapter L of this chapter, if financial assurance is required; Subchapter M of this chapter; and
Chapter 37, Subchapter R of this title, except that owners and operators of recycling facilities who
store combustible material are required to comply with Chapter 37, Subchapter J of this title
(relating to Financial Assurance for Recycling Facilities). Groundwater monitoring may be

                                                27
       TCEQ regularly issues permits, rather than registrations, to Type V processing

facilities that store, process, compost, and recycle waste.37              Under Appellees’

erroneous reading, any company with knowledge of Pintail’s permitting loophole

could seek to avoid the permitting requirement in the same way that Pintail has. As

long as an applicant transferred less than 125 tons of MSW per day, there would be

no need to seek a permit for any other processing activities. The required permitting

process for Type V facilities that incinerate, shred, grind, bale, salvage, separate,

dewater, reclaim, and/or provide other storage or processing of solid waste could be

completely avoided and the affected public would not even have an opportunity for

hearing. This interpretation cannot be correct because it would undermine or even

eliminate the permitting requirement for Type V solid waste processing facilities.

II.    THE TCEQ DENIED AFFECTED PERSONS DUE PROCESS BY
       AUTHORIZING THE FACILITY THROUGH REGISTRATION
       RATHER THAN A PERMIT.

       Appellees’ argument that due process was not violated hinges on the

erroneous assertion registration was appropriate and therefore, no statutory or rule-



required by the executive director and shall be maintained in accordance with the requirements of
Subchapter J of this chapter.”).
37
   C.R. at 389 (CALH Reply Brief at 17) (citing MSW Permit No. 2382, issued May 1, 2014
(authorizing storage, processing, composting, and recycling recovered materials by permit); see
also MSW Permit No. 2379, issued November 9, 2012 (authorizing storage, processing, and
recycling recovered materials by permit). At the time CALH filed its Reply Brief in the District
Court proceeding, both of these permits were available on TCEQ’s webpage titled “Municipal
Solid Waste Applications Posted on the Internet.” Because they are no longer posted on the
TCEQ’s webpage at this time, a copy of each permit is provided in Appendix B.



                                               28
based right to a contested case hearing was denied. However, because a permit is

required, affected persons do have a statutory right to a contested case hearing.38

Additionally, affected persons have a right to a contested case hearing under TCEQ

rules.39 Where there is a statutory right to a hearing and a right to a hearing under

applicable rules, denial of the hearing is a violation of procedural due process.40

       CALH and the City are both parties in the ongoing contested case hearing for

the Pintail Landfill at the same location as this Facility. CALH members and City

of Hempstead have property interests that would be affected by the proposed facility.

For example, CALH has members that reside adjacent to the proposed location and

rely on water wells as their sole source of domestic water, and the City supplies

water to its residents from wells located near the Facility. The Facility is also located

within the City’s extraterritorial jurisdiction. In a contested case proceeding, the

presiding judge has the authority to make the determination of affected status to

identify parties.41 Typically, the facts above would be sufficient to demonstrate



38
   See Tex. Health & Safety Code §§ 361.088, 361.0665, 361.0666, 361.067, 361.079, 361.0791,
and 361.081 (relating to various application notice requirements, published notice requirements,
mailed notice requirements, hearing notice requirements, and contested case hearing requirements
for MSW permit applications).
39
   30 Tex. Admin. Code § 55.201(b)(4); 30 Tex. Admin. Code § 55.203.
40
   County of Dallas v. Wiland, 216 S.W.3d 344, 347 (Tex. 2007) (holding that “the deputies were
discharged without the hearing before the civil service commission promised by system rules to
determine whether just cause existed, and thus they were denied procedural due process.”)
(emphasis added).
41
   See 30 Tex. Admin. Code § 80.109(a) (“Determination by judge. All parties to a proceeding
shall be determined at the preliminary hearing or when the judge otherwise designates.”); 30 Tex.
Admin. Code § 80.109(b)(5) (“Affected persons shall be parties to hearings on permit applications,

                                               29
affected status.      These examples are presented for illustration of Appellants’

interests.

       CALH and the City’s interests should have been afforded the protection of the

permitting process. The permitting process, unlike the registration process, triggers

statutorily granted due process rights to notice and a contested case hearing by virtue

of the Texas Health and Safety Code.42 Here, the issuance of a registration when a

permit was required denied members of CALH, the City, and all other affected

persons their right to notice and a contested case hearing, as required under the

Health and Safety Code for MSW permit applications.43

III.   ALWAYS KEEP YOUR WORD: THE REGISTRATION SHOULD BE
       REVERSED BECAUSE TCEQ ALLOWED AN EXCESSIVE
       NUMBER OF NOTICES OF DEFICIENCY WELL BEYOND ITS
       PUBLICLY PRONOUNCED POLICY.

       The Notice of Deficiency (“NOD”) policy that was reported in the TCEQ

Sunset Evaluation Report to the Texas Legislature, instructed to TCEQ staff in

internal TCEQ procedural documents for registration, and stated in external

correspondence to applicants should be binding on the agency. Appellees argue that

TCEQ’s public statements to the legislature, the public, applicants, and their own


based upon the standards set forth in §55.29 and §55.203 of this title (relating to Determination of
Affected Person.”).
42
   See Tex. Health & Safety Code §§ 361.088, 361.0665, 361.0666, 361.067, 361.079, 361.0791,
and 361.081 (relating to various application notice requirements, published notice requirements,
mailed notice requirements, hearing notice requirements, and contested case hearing requirements
for MSW permit applications).
43
   See id.

                                                30
staff reviewers cannot bind the agency, because the statements were not officially

promulgated under the APA as rules. However, the interest of justice requires the

TCEQ to be bound by its universally professed NOD policy pronouncements that

were made in promises to the legislature, declarations to applicants, instructions to

its staff, and assurances to the public. Appellees argue that the NOD policy should

not be binding on the agency because enforcement of the well-publicized policy

would have undesirable results, but the converse is true. The only fair remedy in

this situation is to enforce the NOD policy that TCEQ professed to follow. Any

other course of action would cause harm to the public, to the agency, to the regulated

community, to the TCEQ staff, to the Texas legislature, and to taxpayers.

      The public deserves to have confidence that the TCEQ applies its stated

policies, including the two NOD policy, to all applicants in a uniform manner.

Allowing TCEQ to disregard its own NOD policy would undermine public

confidence in the agency, and ultimately harm the agency’s reputation.            The

regulated community deserves to have a uniform process in which applicants are all

treated equally. Allowing the TCEQ to selectively disregard its stated NOD policy

harms the regulated community and threatens the environment by allowing facilities

to be operated by companies that lack the competence to complete an application as

required without excessive NODs. Agency management also suffers reputation

damage in such a scenario, because they are forced to say one thing and do another.



                                         31
Additionally, allowing the NOD policy to be disregarded is unfair to agency staff

members, who will be unable to rely on the plain letter of the policy instructions they

are issued. Finally, disregarding the NOD policy is unfair to the Texas legislature

and the taxpayers whose dollars support the agency’s activities. TCEQ should be

held to its two NOD policy, which was intended to promote efficiency within the

agency. Allowing the NOD policy to be disregarded undermines the purpose of the

policy altogether – to ensure efficient review of applications. Efficient application

review saves taxpayer dollars and expedites review for applicants. TCEQ cannot be

allowed to disregard its NOD policy. Such a decision would be unfair to all

participants, and would merely enable the TCEQ to waste taxpayer and applicant

resources with unnecessarily lengthy application reviews.

       Worthy of note, returning a deficient application is not unprecedented.

Counsel is aware of two examples referenced in briefing at the administrative level

for this registration application alone.44 Indeed, this Court dismissed an untimely

appeal of one of these returned applications.45

       Appellees argue that it was reasonable to continue to send Pintail NODs in

violation of the TCEQ’s publicly pronounced policy, because new requests for

information were being made. However, the record shows that Pintail repeatedly


44
   R.R. at Joint Ex. 1, AR Vol. 7, Item 48, p. 5–6 (Motion to Overturn Executive Director’s August
16th, 2012 Issuance of a Fifth Notice of Deficiency).
45
   Tex. Comm’n on Envtl. Quality v. Kelsoe, 286 SW.3d 91 (Tex. App.—Austin 2009).

                                               32
failed to adequately respond to TCEQ’s NOD requests, exceeding the two NOD

limit for the same TCEQ requests. TCEQ should only be allowed two NODs, in

accordance with its stated policy, but even if the two NOD limit was measured by

the subject matter of each question asked, TCEQ still exceeded its policy. As

demonstrated by the highlighted portions of Appendix A, TCEQ repeated a number

of NOD requests more than twice, and Pintail did not adequately respond to the

requests within the two NOD limit.

      The subject matters of the lengthiest requests follow.            The registration

application failed to include the required construction details of subsurface supports

of all storage and processing components and failed to include the required review

letter from the Texas Historical Commission.46 TCEQ’s requests for both of these

NOD items were made on October 27, 2011, again on February 17, 2012, and for a

third time on April 12, 2012, in violation of the two NOD policy. The required

information from Texas Department of Transportation was only provided after

TCEQ requested it in five NODs. This information was requested on October 27,

2011, again on February 17, 2012, for a third time on April 12, 2012, for a fourth

time on June 25, 2012, and for a fifth time on August 16, 2012. Even after all of

these requests, there was still another TCEQ request for additional information,



46
   See Appendix A: NOD letters from TCEQ and Supplementary Information transmittal letter
from Pintail dated Oct. 18, 2012. R.R. at Joint Ex. 1, AR Items 3, 13, 22, 24, 32, 39, 51).

                                            33
which was responded to on October 18, 2012, providing a new Facility Boundary

Map and new information about nearby water wells, springs, surface water bodies,

and oil and gas wells.   The agency should not be allowed to write Pintail’s

registration application for them. This registration application should have been

returned.




                                       34
                                      PRAYER

      TCEQ acted in violation of its own rules and policies, and in abrogation of the

due process rights of affected persons, in granting the Registration Application and

issuing Registration No. 40259. Therefore, CALH and the City respectfully pray

that the trial court's Judgment affirming the TCEQ’s action be reversed, and that

Court reverse, or suspend and set aside, the Registration and remand this matter to

TCEQ for further proceedings consistent with this Court’s opinion. CALH and the

City further pray for all other and further relief, both general and special, at law and

in equity, to which they may be justly entitled.

                                        Respectfully submitted,

                                        HANCE SCARBOROUGH, LLP
                                        400 W. 15th Street, Ste. 950
                                        Austin, TX 78701
                                        Telephone: (512) 479-8888
                                        Facsimile: (512) 482-6891


                                        By:    _______________________
                                               Terry L. Scarborough
                                               State Bar No. 17716000
                                               Michael L. Woodward
                                               State Bar No. 21979300
                                               mwoodward@hslawmail.com
                                               V. Blayre Pena
                                               State Bar No. 24050372
                                               bpena@hslawmail.com
                                               Wesley P. McGuffey
                                               State Bar No. 24088023
                                               wmcguffey@hslawmail.com



                                          35
                                       ATTORNEYS FOR APPELLANTS CITIZENS
                                       AGAINST THE LANDFILL IN HEMPSTEAD,
                                       MICHAEL MCCALL, AND WAYNE KNOX



                                       KELLY HART & HALLMAN LLP
                                       301 Congress Avenue, Suite 2000
                                       Austin, Texas 78701
                                       Telephone: (512) 495-6400
                                       Facsimile: (512) 495-6401


                                       By:     /s/ Diana Nichols
                                               Monica M. Jacobs
                                               State Bar No. 24007433
                                               Monica.Jacobs@kellyhart.com
                                               Diana L. Nichols
                                               State Bar No. 00784682
                                               Diana.Nichols@kellyhart.com

                                       ATTORNEYS FOR THE CITY OF
                                       HEMPSTEAD


                      CERTIFICATE OF COMPLIANCE

       Pursuant to Texas Rule of Appellate Procedure 9.4, I hereby certify that this
brief contains 6,788 words. This is a computer generated document created in
Microsoft Word, using 14 point typeface for all text, except for footnotes, which are
in 12-point typeface. In making this certificate of compliance, I am relying on the
word count provided by the software used to prepare the document.




                                             Terry L. Scarborough




                                         36
                         CERTIFICATE OF SERVICE
      I hereby certify that a copy of Reply Brief of Appellants’ was served on the

following counsel of record on April 16, 2015, via certified mail, return receipt

requested, and/or the electronic filing system:

      Nancy Elizabeth Olinger
      Nancy.Olinger@texasattorneygeneral.gov
      Cynthia Woelk
      Cynthia.Woelk@texasattorneygeneral.gov
      Daniel C. Wiseman
      Daniel.Wiseman@texasattorneygeneral.gov
      OFFICE OF THE ATTORNEY GENERAL OF TEXAS
      Environmental Protection Division (MC-066)
      P.O. Box 12548
      Austin, TX 78711-2548
      ATTORNEYS FOR TCEQ

      Paul R. Tough
      ptough@msmtx.com
      Brent W. Ryan
      bryan@msmtx.com
      MCELROY, SULLIVAN, MILLER, WEBER & OLMSTEAD, LLP
      P.O. Box 12127
      Austin, TX 78711

      Michael S. Truesdale
      LAW OFFICE OF MICHAEL S. TRUESDALE, PLLC
      801 West Avenue, Suite 201
      Austin, TX 78701
      ATTORNEYS FOR THE PINTAIL LANDFILL, LLC




                                           Terry L. Scarborough



                                         37
APPENDIX A
Bryan W. Shaw) Ph.D., Chair111an
Buddy Garcia, Co1n1nissioner
Carlos Rubinstein, Convnissioner
Mark R. Vickery, P.G .1 Executive Directo1·


                         TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
                                              Prote.cting Texas by Reducing and Preventing Pollution

                                                               August 15, 2011

     Mr. Ernest Kaufmann
     Pintail Landfill, LLC
     24644 Highway 6
     Hempstead, Texas 77445

     Re:       Pintail landfill Transfer Station - Waller County
               Municipal Solid Wasle (MSW) - Registration No. NA
               Registration Application (RA) - Preliminary Review
               T1·acking Nos. 14835575 & 14874930; RN: NA/ CN603939349

     Dear Mr. Kaufmann:

     The MSW Permits Section has completed a preliminary review of the RA dated Angust 1, 2011,
     and the revisions dated August 8, 2011, for a Type VTransfer Station. Additional information is
     necessary to comply with the application requirements of Title 30 of the Texas Administrative
     Code (30 TAC) Chapter 305 and Chapter 330. The information requested below must be
     provided prior to fillther application review. When maldng revisions to maps, drawings, and
     figures which are repeated throughout the application, each map, drawing, and figure must be
     revised throughout the application.

     1.    It is not clear whether the person who signed U1e signature page located on page 10 ofTCEQ
           Form No. 0650 meets the requirements of 30 TAC Section (§)305.44 (relaling to Signatories
           to Applications). Please include documentation that the person who signs the signature
           page has the signing qualifications as specified iu 30 TAC §305.44, §s30.59(g), and Section
           G ofTCEQ Form No. 0650.

    2. The text within U1e property owner affidavit located on page 9 of TCEQ Form No. 0650 has
       been modified to state that the property owner shall not be held responsible for the
       operation, maintenance, and closure and pOS'HJosure care of the facility.. Please note that in
       accordance with 30 TAC §s30.59(d)(2)(A) the property owner affidavit must include an
       acknowledgment that the State of Texas may hold the property owner of record either jointly
       or severally responsible for the operation, maintenance, and closure and post-closure care of
       the facility. In addition, please note that the text within the properly owner affidavit should
       not be modified from the original text contained within page 9 ofTCEQ Form No. 0650.
       Please resubmit a properly completed property owner affidavit with your next submittal.
       Please ensure that the standard text within the property owner affidavit will not be modified.

    3. Part V of the TCEQ Core Data Form (TCEQ Form No. 10400) does not include the date that
       the form was signed. Please revise Part VofTCEQ Form No.10400 to include the date that
       the form was signed.




                      1) .0. Box 13087   •     A1rntin, Texas 78711-3087   °   512-239-1000    ..   www.tceq.texas.gov
                                How fa our custo1ner service'~     wvvvv.tceq.texas.gov/goto/c11ston1ersurvey
Mr. Ernest Kaufmann
Page 2
August 15, 2011

4. Part I of the RA does not include a listing of all permits or construction approvals received or
   a1Jplied for. In accordance vrith 30 T_,_a_._c §305.45(a)(7), please revise Part I oftl1e RA to
   include a listing of all permits or construction approvals received or applied for in
   accordance with the cited rule. For those permits listed in §305.45(a)(7), please indicate
   whether the applicant has applied, received approval, or whether it is not applicable.

Please submit an original and three (3) copies of the application revisions within fourteen (14)
days of the date of this letter. Your response must be in a fonn that allows for the replacement
of application pages with revised pages. According to 30 TAC §s30.57(g)(6), revisions must
have a revision date and note that the sheet is revised in the header or footer of each revised
sheet or page. Since your application is under a preliminary review, please use the label,
"Pl·elim-Review #(date)" ill the headel' or footer to identify your NOD response.

Please complete Pages 1 and 2 of the Part I Form to include with your response and mark the
boxes to indicate that your response is a "Notice of Deficiency Response" for the "Registration
Application." In accordance with 30 TAC §§281,5(1) and 305-44, please also include a new,
original signature page, Page 10 of the Part I Form, as part of your response. Along with the
original signature, the certification statement should indicate the name, title, and address of the
responsible official. This form and the Core Data Form are available on our Website at:
http:/ /Vl"AW. tceq.state. tx. us/permitting/waste_permits/msw_permits/
perm_reg:_Jnod.html#all.

Failure to submit the requested information will result in the application being returned to the
applicant. If you have any questions, please contact me at (512) 239-2580. Please include the
mail code MC 124 when you address written correspondence.

Sincerely,


 u M.  b      J4E'. ·~
RU en eza, r., <ngmeermg upec1 lS
                                 'al' t
Municipal Solid Waste Permits Section
Waste Permits Division
Texas Commission on Environmental Quality

RM/fp

cc:     Mr. Kenneth J. Welch, P.E., Biggs & Mathews Environmental
Bryan W. Shaw, Ph.D. 1 Chai1'ntm1
BuddyGarcia, Co1nn1issio11er
Carlos Rubinste.in 1 Co1nniissio11er
Mark R. Vickery, P.G.1 Executive Director


                          TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
                                              PJ'atecting T~as by Red11cing and Preventing Pollution
                                                              October 27, 2011

     Mr. Ernest Kaufmann
     Pintail Landfill, LLC
     24644 Highway 6
     Hempstead, Texas 77445
     Re:        Pintail Landfill Transfer Station - Waller County
                Municipal Solid Waste (MSW) - Registration No. 40259
                Registration Application (RA) - First Technical Notice of Deficiency (NOD)
                Tracking Nos. 14835575, 14874930, & 14916883; RN106192735/CN603939349
     Dear Mr. Kaufmann:
     The MSW Permits Section has completed the review of the registration application dated August
      1, 2011, and the revisions dated August 8, 2011, and August 29, 2011. The application was
     prepared by Biggs and Mathews Environmental and submitted on behalf of Pintail Landfill,
    . LLC. Additional information must be presented to demonstrate compliance with Title 30 Texas
      Administrative Code (30 TAC) Chapter 305 and Chapter 330. The information requested below
      is necessary for a complete registration application and must be addressed prior to fnrther
      technical review. When making revisions to maps, drawings, and figures which are replicated
      throughout the application, each map, drawing, and figure needs to be revised throughout the
      application.
     A. Dated cover letter transmitting the revised RA should accompany the revised application;
     B. Each item of concern should be addressee! in the transmittal letter and the applicant's
           response to the.item should be immediately following the item of concern;
     C. The applicant should indicate where in the revised RA the revisions have been made by
        reference to part, section, and page number; and
     D. Please include an original certification statement with the revision, in accordance with 30
        TAC Section (§)305-44· The certification statement should indicate the name, title, and
        address of the responsible official.
     Part I and Part I Attachments
     1.    The title page of the RA and the title pages for Part I, II, III, and IV of the RA do not list the
           facility's MSW registration number and the city where the facility is located. In accordance
           with 30 TAC §s30.57(g)(2), please revise the title pages stated above to ensure that the
           facility's MSW registration number and the city that the facility is located in shall be
           included. The facility referenced above has been assigned MSW registration number 40259.
     2.    Upon reviewing the land use maps located on pages IIB-7 and IIB-8, it appears that some of
           the land area within a one mile i'adius of the facility property boundary has not been given a
           land use classification. In accordance with 30 TAC §305As(a)(6)(B) and §s30.6l(g), please
           revise these figures to ensure that all land areas within a one mile radius of the facility shall
           be classified by land use (e.g., residential, commercial, agricultural, recreational, industrial,
           undeveloped, ect.).

                        P.O. Box13087     •     Austin, Texas 78711-3087    •   512-239-1000    6
                                                                                                    v..ww.tceq.texas.gov
                                  How is our custo1nel' service?    wv..w;tceq.texas.gov/goto/custo1nersurvey
Mr. Ernest Kaufmann
Page 2
October 27, 2011


3. The color cocling used on the maps located on pages IIB-8 and IIB-9 is not legible and code
   clistinct when reproduced on black and white photocopy machines. In accordance with 30
   TAC §g30.57(h)(2), please revise these maps to ensure that they will be legible and code
   distinct when reproduced on blaclc filld white photocopy machines.
4. The drawings contained on pages IIB-7, IIB-8, and IIB-9 do not contain a revision block and
   a drawing number. In addition, the scale on each of these figures does not match the
   description provided for each scale. In accordance with 30 TAC §g30.57(h)(3), (4)(c), and
   (4)(e), please revise the drawings stated above to ensure that they will be submitted at a
   standard engineering scale and that they will contain a re1~sion block and a drawing
   number.
5. The aerial photographs located on pages IIE-44 through UE-49 do not contain a north
   arrow. In accordance with 30 TAC §330.57(h)(5)(a), please revise the aerial photographs
   stated above to ensure that they will contain a north arrow.
6. The RA does not address the requirements contained in 30 TAC §s30.73, regarding
      additional standard permit and registration conditions for MSW facilities. Please revise the
      RA to include a discussion regarding all applicable regulations associated with the cited mle.
Part U and Part II Attaclunents
7. Section 2.2, Volume and Rate of Disposal, page Il-4 states, "The waste acceptance rate will
   vary over tlie life of the facility depending on market conditions." Please note that the
   statement above does not specify the maximum waste acceptance rate for the facility. In
   addition, Part !II, Section 4, Waste Management Unit Design, page IIIA 7, states that the
   maximum waste acceptance rate for the facility is approximately 94 tons per day. In
   accordance with 30 TAC §330.6i(b)(1)(B), please revise the statements above to ensure that
   a consistent maximum waste acceptance rate for the facility is provided.
8. Section 2.2, Volume and Rate of Disposal, page II-4, contains a discussion regarding the
   regulations associated with 30 TAC §s30.125(h), regarding the recordkeeping requirements
   associated with the annual waste acceptance rate at a MSW landfill facility. Please note that
   30 TAC §g30.125(h) is not applicable to MSW storage and processing facilities. Please
   remove all language associated with 30 TAC §330.125(h) from the RA.
9. Section 2, Waste Acceptance Plan, page II-3, states, "Non-recyclable materials will be
   transported to a properly permitted Type I or Type N landfill that is located within 100
   miles of the proposed facility." In addition, Section 2,3, Waste Storage and Disposal, page
   Il·5 contains a similar statement. Please note that these statements do not clearly specify
   the intended destination of the nonrecyclable waste received at the facility. In accordance
   with 30 TAC §330.61(b)(1)(B), please revise these statements to include the name, permit
   number, and distance from the transfer station with respect to each landfill that the facility
   will use to dispose of nonrecyclable waste.
10.   Part II of the RA does not indicate whether there are any hospitals within one mile of the
      facility. In accordance with 30 TAC §330.61(c)(4) and §330.61(g), please revise Part II of the
      RA to verify whether there are any hospitals located within one mile of the facility. If there
      are any hospitals located within one mile of the facility, please ensure to revise the land use
      maps in RA to depict their location.
Mr. Ernest Kaufmann
Page3
October 27, 2011


11.   The RA does not include a general location map that depicts the location and surface type of
      all roads within a one miie radius of the facility that will normally be used by the owner or
      operator for entering or leaving the facility. In accordance with 30 TAC §330.61(c)(5),
      please revise the RA to include a map that will depict the items mentioned above.
12. Section 12.1, Water Wells, indicates that there is a single story residential structure in the
    northwestern portion of the site and another single story residential structure in the west
    central portion oflhe site. n is noted-thafthese structures are not depicted in the facility
    layout maps. Please note that all structures within the registration boundary must be
    depicted on the facility layout maps. In accordance with 30 TAC §s30.61(d)(4), please revise
    the facility layout maps to ensure that all structures within the registration boundary are
    depicted.
13. Part II of the RA does not indicate whether there are any archaeological sites adjacent to the
    facility. In accordance with 30 TAC §330.61(c)(12), please revise all applicable parts of the
    RA to indicate whether there are any archaeological sites adjacent to the facility. If there are
    any archaeological sites adjacent to the facility, please ensure to revise the land use maps in
    the RA to depict their location. In addition, in accordance with 30 TAC §s30.61(h)(4),
    please provide the proximity to any archaeologically significant sites within one mile of the
    facility.
14. The RA does not contain a map that clearly depicts the facility access control features. In
    accordance with 30 TAC §330.fo(c)(ll) and §330.61(d)(6), please revise the RA to include a
    map that will depict the facility access control feah1res.
15. Part II of the RA does not include a response from the Texas Department of Transportation
    (TXDOT) regarding the applicants request for coordination. In accordance with 30 TAC
    §s30.61(i)(4), please submit the response from TXDOTto demonstrate coordination.
16. Part II of the RA does not include a certification statement prepared, sealed, and signed by a
    licensed Professional Engineer (P.E.) indicating the owner/operator will obtain the
    appropriate Texas Pollutant Discharge Elimination System (TPDES) permit coverage when
    required. In accordance with 30 TAC §s30.61(k)(3)(A), please revise Part II of the RA to
    include a certification statement requested above.
17. Section 12.2, Oil and Gas Wells, page IHn, states, "There is one existing abandoned crude
    oil or natural gas well within the Pintail Landfill Transfer Station boundary." But this
    section does not state whether this well has been properly capped, plugged, and closed in
    accordance with all applicable rules and regulations of the Railroad Commission of Texas.
    In accordance with 30 TAC §s30.61(l)(2), please revise this section to include a certification
    statement regardh1g whether this well has been properly capped, plugged, and closed in
    accordance with the cited rule.
18. Appendix IID, Wetlands Documentation, page IID-6, located in Part II of the RA, indicates
    that the wetland jurisdiction determination provided in the RA is a preliminary evaluation
    based on aerial photograph interpretation and has not been surveyed per United State Army
    Corps of engineers (USACE) standards. In addition, this evaluation has identified features
    within the facility's registration boundary that may be classified as wetlai1ds, but the RA does
    not include the information requested in 30 TAC §330.553, regarding wetlands
    determination. In accordance with 30 TAC §s30,61(m)(2), please revise Appendix IID to
Mr. Ernest Kaufmann
Page4
October 27, 2011


      include a wetlands determination that shall address all applicable requirements contained in
      30 TAC §330.553(b)(1) through (5). In addition, please submit a request for a jurisdictional
      determination to the USAGE to verify the limits of wetland jurisdiction. Additionally, please
      submit to us this coordination with USAGE and the jurisdictional determination from
      USAGE.
19. The RA does not include a review letter from the Texas Historical Commission documenting
      compliance with the Natural Resources Code, Chapter 191, Texas Antiquities Code. In
      accordance with 30 TAC §330.6i(o), please revise Part II of the RA to include a review letter
      from the Texas Historical Commission documenting compliance witl1 the Natural Resources
      Code, Chapter 191.
20. Section   17.1.2, Buffer Zones, page II-26, states that, "The buffer zones between the
      registration boundary and the transfer station location are shown on Drawing IIAn -
      General Site Plan." Please note that upon review, Drawing IIA 11 does not depict the buffer
      zones for the facility. In accordance Viii.th 30 TAC §330.543(b)(1), please revise this drawing
      to ensure tliat the buffer zones for the facility are depicted.
21.   The RA contains an evaluation performed by Half Associates, Inc., in Appendix IIE
      regarding threatened and endangered species that may be found within the registr·ation
      boundary. The evaluation states that the following tl1reatened and endangered species may
      be found within the registration boundary based on a preliminary review of publically
      available resources: Houston toad, white-faced ibis, wood stork, creek chubsucker, and the
      timber/ canebraJce rattlesnalce. The evaluation states that the likelihood of occurrence for the
      white-faced Ibis, wood stork, and timber/ canebrake rattlesnake is conditional, is based on
      migration patterns, and is not likely to occur within the registration boundary. In addition,
      the evaluation states that because limited information is available, the facility should contact
      the Texas Parks and Wildlife Department (TPWD) regarding the creek chubsucker and the
      US Fish and Wildlife Service (USFWS) regarding the Houston Toad. In accordance with 30
      TAC §330.fo(n)(1) and §330.551, regarding endangered and threatened species, please
      provide a letter from the TPWD and USFWS to verify whether any endangered or threatened
      species may be located wthin the registration boundary.
22.   Part II, Section 17, Location Restrictions, includes a discussion regarding the regulations
      contained in 30 TAC Chapter 330, Subchapter M, regarding location restrictions. Please
      note that each discussion regarding the location restrictions specified in 330 TAC Chapter
      330, Subchapter M should be certified by a licensed P.E. Please revise Part II, Sectio1117, to
      ensure that each discussion regarding the location restrictions specified above will be signed,
      sealed, and dated by a licensed P.E.
Part HI and Part III Attachments
23. Section 2.1, Facility Access, page IIIA-z, states, "A gate constructed of suitable foncing
    materials will be located on the entrance road." Please note that this statement does not
    clearly provide a description of the facility's entrance gate. In accordance with 30 TAC
    §g30.63(b)(1), please revise the statement above to provide a general description of the
    facility's entrance gate.
Mr. Ernest Kaufmann
Page 5
October 27, 2011


24. The RA does not contain a drawing depicting all dimensions associated with the floor
    drninage trench, drainage sump, and the secondary containment walls associated with the
    contaminated water tank. In accordance with 30 TAC §330.63(b)(2)(D) and (F), please
    revise the RA to include a drawing that will depict all of the dimensions associated with the
    items specified above. Please ensure that the drawings shall depict key cross sectional and
    plan views for all items specified above.
25. Drawing IIIB.2, Transfer Station Layout Plan, does not state what materials will be used to
    construct the contaminated watertanlc. In accordance with 30 TAC §g30,63(b)(2)(D),
    please revise this drawing to include the type of materials that will be used to construct the
    contaminated water tank
26. The RA does not include construction details of slab and subsurface supports of all storage
    and processing components. In accordance with 30 TAC §g30,63(b)(2)(E), please revise the
    RA to include generalized construction details of slab and subsurface supports of all storage
    and processing components. Please ensure that the drawings shall depict key cross sectional
    and plan views for all items specified above.
27, Part III of the RA does not address the regulations contained in 30 TAC §330.63(b)(5)
   regarding endangered species protection. In accordance with the cited rule, please provide a
   discussion regarding how the facility will be designed to protect endangered species.
28, Please provide a certification statement prepared, sealed, and signed by a licensed P.E.
    verifying the requirements of 30 TAC §g30.63(c) regarding facility surface water drainage.
29. Section 2, Closure Requirements, page IIIC-2 includes a discussion regarding the placement
   of closure notification signs and suitable barriers at all access points of the facility, but this
   discussion does not state when these items will be placed at the facility. In accordance with
   30 TAC §330-461Cb), the items stated above should be placed no later than 90 days prior to
   the initiation of a final facility closure, In accordance with the cited rule, please revise this
   section to include a timeframe of when the closure notification signs and suitable ban'iers at
   all access points of the facility will be placed at the facility.
30. The facility's closure plan has not addressed the regulations associated with 30 TAC
    §330-459(C) and (d)(2), regarding evidence of a release from an MSW unit and timeframe
    for the completion of closure activities, respectively. Please revise the facility's closure plan
    to address the cited rules.
31. The closure cost estimate located in Appendix IIID1, Closure Cost Estimate Calculations, on
    page IIID1-4, has not been sealed, signed, and dated by a P.E. In accordance with 30 TAC
    §330.57(±)(1), please revise this document to ensure that it is signed, sealed, and dated by a
    P.E.
32, The RA has not address all of the regulations associated with 30 TAC §330.63(j), regarding
    cost estimate for closure and post-closure care. In accordance with the cite rule please revise
    the RA to ensure that the facility will submit a copy of the documentation required to
    demonstrate financial assurance as specified in 30 TAC Chapter 37, Subchapter R (relating
    to Financial Assurance for Municipal Solid Waste Facilities) 60 days prior to the initial
    receipt of waste.
Mr. Ernest Kaufmann
Page 6
October 27, 2011


Part IV and Part IV Attachments
33. Part IV of the RA does not provide a discussion regarding the types of waste to be received,
    an estimate of the amount of each waste to be received daily, the maximum and average
    lengths of time thatthe recovered material will remain at the facility, and the maximum and
    average waste processing times. In accordance with 30 TAC §330.203(b), please revise Part
    IV of the RA to include a discussion regarding the items stated above.
34. Section 3, Contaminated Water Management, page N-4, states, "Should the discharge of
    contaminated water be necessary, the facility will obtain specific written authorization from
    the TCEQ prior to discharge. Please note that in accordance with 30 TAC §s30.203(e), off-
    site discharge of contaminated waters shall be made only after approval under the Texas
    Pollutant Discharge Elimination System authority. Please revise the statement above to be
    in compliance with the cited rule.
35. Table 5-1, page IV-8, contains references to the facility's regisb·ation number, but does not
    provide the facility's registration number. Please revise this table to include the facility's
    registration number (MSW 40259).
36, Section 6, Fire Protection Plan, page IV-9, has not demonstrated that an adeq_uate supply of
    water m1der pressure is available for firefighting purposes. In accordance \/\~th 30 TAC
    §s30.221(a) and (c), please revise this section to include a discussion demonstrating that an
    adeq_uate supply of water under pressure is available for firefighting purposes. Please ensure
    to discuss the water sources, the amount of water available from each source, the location of ·
    each water source, and the amount of water pressure available for fire protection purposes.
    If water tanks will be used to store water, please provide the location, the volmne of water
    that v,ill be stored, and the water pressure available with respect to each water tank.
37. Section 7.1, Access Control, page IV-12, does not provide the construction details associated
    with the perimeter fence located at the registration boundary. In accordance v"ith 30 TAC
    §330.223(c), please provide a discussion regarding the construction details of the perimeter
    fence located at the regisb·ation bom1dary.
38, Section 74, Operating Hours, page N-14, states that the Pintail Landfill Transfer Station is
    authorized for waste acceptance from 7 a.m. to 7 p.m., Monday through Satmday and
    authorized for facility operations from 5 a.m. to 9 p.m., Monday through Saturday. Please
    note that the waste acceptance and operating hours specified above are not in compliance
    with 30 TAC §330.2i9(a), regarding operating hours. In accordance with the cited rule
    please revise the facility waste acceptance and operating hours to ensure that waste
    acceptance hours will be any time between the hours of 7:00 a.m. and 7:00 p.m., Monday
    through Friday, and that the facility operating hours will be any time between the hours of
    5:00 a.m. and 9:00 p.m,, Monday through Friday.
39. The RA does not address the regulations associated with 30 TAC §s30.203(c), regarding
    waste acceptance and analysis; 30 TAC §s30.205, regarding facility-generated wastes; 30
    TAC §330.zo7(f), regarding wastewater d\schai·ge; 30 TAC §s30.229(b) and (c), regarding
    waste acceptance hours; and 30 TAC §330.245(a), (b), (d), (f), (h), (i), and (j), regarding
    ventilation and air pollution control. Please revise Part IV of the RA to include a discussion
    regarding the regulations stated above.
Mr. Ernest Kaufmann
Page7
October 27, 2on


Please submit an original and three (3) copies of your application revisions within 54 days of the
date of this letter. Your response must be in a form that allows for the replacement of
application pages with the revised pages. According to 30 TAC §s30,57(g){6), revisions must
have a revision date and note that the sheet is revised in the header or footer of each revised
sheet or page. The revised text must be marked to highlight the revision. Since your application
is under technical review, please use the label, "Tech-Revision # (date)" to identify your
NOD response. In accordance with 30 TAC §305,44, please include an original certification
statement with the revision. Along with the original signature, the certification statement
should indicate the name, title, and address of the responsible official. Failure to submit a
satisfactmy response to each of the noted deficiencies may result in the application being
returned due to technical deficiencies.
Please note we do not anticipate granting an extension of time to fulfill this request. Also, please
be aware a third notice of technical deficiency will not be issued.
If you have any questions, please contact me at (512) 239-2580. When addressing written
correspondence, please use mail code MC 124.
Sincerely,



3:::z~ting                  Specialist
Municipal Solid Waste Permits Section
Waste Permits Division
Texas Commission on Environmental Quality
RM/sm
cc:    Mr. Kenneth J, Welch, P.E., Biggs & Mathews Environmental, Mansfield
B1yan VV. Shavv, Ph.D., Chainnan
Buddy Garcia, Commissioner
Carlos Rubinstein 1 Co1nn1issioner
Mark R. Vicke1y, P,G,! Executive Director


                        TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
                                            P1'otecting Texas hu Reriucin[] and Preventing Pollt1Hon
                                                               February 17, 2012

    Mr. Ernest Kaufmann
    Pintail Landfill, LLC
    24644 Highway 6
    Hempstead, Texas 77445
    Re:       Pintail Landfill Transfer Station - Waller County
              Municipal Solid Waste (MSW) - Registration No. 40259
              Registration Application (RA) - First Technical Notice of Deficiency (NOD)
              Tracldng No. 151850663; RN106192735/CN603939349
    Dear Mr. Kaufmann:
    The MSW Permits Section has completed the review of the RA dated August 1, 2011, and the
    revisions dated August 8, 2011, August 29, 2011, November 16, 2011, and January 18, 2012. The
    application was prepared by Biggs and M.athews Environmental and submitted on behalf of Pintail
    Landfill, LLC. Additional information must be presented to demonstrate compliance with Title 30
    of the Texas Administrative Code (30 TAC) Chapter 305 and Chapter 330. The information
    requested below is necessary for a complete RA and mnst be addressed prior to further technical
    review. When making revisions to maps, drawings, and figures which are replicated tl1roughout
    the application, each map, drawing, and figure needs to be revised throughout the application.
    A. Dated cover letter transmitting the revised RA sl1ol1ld acco1npa11y tl1e revised application;
    B. Each item of concern should be addressed in the transmittal letter and the applicant's response
       to the item should be immediately following the item of concern;
     C. The applicant should indicate where in the revised RA the revisions have been made by
        reference to part, section, and page number; and
     D. Please include an original certification statement with the revision, in accordance with 30 TAC
        Section (§)305,44. The certification statement should indicate the name, title, and address of
        the responsible official.
     Part I and Part I Attachments
     1.   It is noted that the current submittal contained four redline/strikeout copies. Please note that
          all revised registration applications should include one original, two unmarked copies, and one
          marked copy (such as a redline/strikeout version). Please provide one original and two
          unmarked copies of tlrn January 18, 2012, submittal with your next response.
     2. Page 3 of the Texas Commission on Environmental Quality (TCEQ) Part 1 Form (TCEQ Form
        No. 0650) states that the information regarding the public place where the administratively
        complete RA will be located is not applicable. It is noted that the revised Notice of Application
        and Opportunity to Request a Public Meeting tliat the facility published Btates that the RA is
        available for viewing and copying at the Waller County Clerk's Office. Please revise page 3 of
        the TCEQ Form No. 0650 to include the information regarding the public place where the
        administratively complete registration application will be located.


                       P.O. Box 13087       •   Austin) Texas 78711-3087     •   512-289-1000    •     wWVir.tceq,texas.gov
                                   lioVI' is our custon1er service?   WW\V.tceq.texas.gov/goto/custornersnrvey
                                                                                                        1
Mr. Ernest Kaufmann
Page 2
                                                                                                        I
                                                                                                        !
February 17, 2012
                                                                                                        II
Part II and Part II Attachments                                                                         i
3. Om concerns listed in NOD Comment No. 15 of our October 27, 2011 letter, have not been
   adequately addressed. As stated previously, Part II of the RA does not include a response from
   the Texas Department of Transportation (TXDOT) regarding the applicants request for
   coordination. In accordance with 30 TAC §330.6i(i)(4), please submit the response from
   TXDOT to demonstrate coordination. Please ensure to provide documentation that TXDOT
   has reviewed the new location of the facility's site entrance.
4. Our concerns listed in NOD Comment No. 19 of our October 27, 2011 letter, have not been
   adequately addressed. As stated previously, the RA does not include a review letter from the
   Texas Historical Commission documenting compliance with the Natural Resomces Code,
   Chapter 191, Texas Antiquities Code. In accordance with 30 TAC §g.30.61(0), please revise Part
   II of the RA to include a review letter from the Texas Historical Commission documenting
   compliance v,clth the Natural Resources Code, Chapter 191.
5. Part II, Section 1.1, Existing Conditions, page U-1, states that the "Proposed registration
   boundary is outside the City of Hempstead city limits and outside its extraterritorial
   jurisdiction." It is noted that the RA does not include a map depicting the City of Hempstead
   city limits and extraterritorial jurisdiction. Please revise Part II of the RA to include a map
   depicting the City of Hempstead city limits and extraterritorial jurisdiction.
6. Om concerns listed in NOD Comment No.18 of our October 27, 2011 letter, have not been
   adequately adclTessed. Part II, Appendix IID, Wetlands Documentation, page IID-168, states
   that the facility has requested a preliminary jurisdictional determination from the United States
   Army Corps of Engineers (USACE). It is noted that the RA does not include documentation
   regarding the USACE jurisdictional determination. Please ensure to include all documentation
   regarding coordination witl1 USACE and the jurisdictional determination from USACE with
   your next submittal.
7. Part II, Appendix IID, Wetlands Documentation, provides information regarding the
   delineation of wetlands and waters of the United States (US) mthin the property boundary.
   Upon review, it is not clear whether any of the delineated wetlands and waters of the US will be
   impacted during the construction of the transfer station and internal facility roadways. To
   clarify whether any of the delineated wetlands and waters of the US will be impacted, please
   revise Part II of tlrn RA to include a dramng depicting the transfer station, internal facility
   roadways, wetlands, waters of the US, and the registration boundary. Additionally, please
   provide a discussion regarding whether any wetlands and waters of the US v,111 be altered
   during the construction of the facility.
8. Part II, Appendix IIE, Appendix IIE, Endangered or Tiueatened Species Documentation, page
   IIE-71 and 72, both state that, "Because of the incidental chance for occurrence and because tl1e
   suitable habitat occurs in areas (i.e. south central pond/wetland complex) that will not be
   impacted by the landfill, the landfill project will not cause or contribute to taldng of the White
   Faced Ibis .. ; . [and the] Wood Stork" In addition, Part II, Appendix IIE, Appendix IIE, page
   IIE-74 states, "However, because suitable habitat for the timber rattlesnake occurs in portions
   of the study area (i.e. forested areas near permanent water sources) that will not be impacted by
   the landfill, the landfill project will not cause or contribute to taldng of the Timber
   Rattlesnake." Please note that the RA has not clearly identified the locations of the potential
   habitats for the White Faced Ibis, Wood Stork, and Timber Rattlesnake. Please provide a
   drawing showing the locations of the potential habitats for the White Faced Ibis, Wood Stork,
   and Timber Rattlesnake. Please ensure tlmt this drawing will also depict the transfer station,
   internal facility roadways, and the registration boundary.
Mr. Ernest Kaufmann
Page 3
February17, 2012


Part III and Part III Attachments
9. Our concerns listed in NOD Comment No. 24 of our October 27, 2011 letter, have not been
   adequately addressed. As stated previously, the RA does not contain a drawing depicting all
   dimensions associated with the floor drainage trench and drainage sump. In accordance with
   30 TAC §s30.63(b)(2)(D) and (F), please revise the RA to include a drawing that will depict all
   of the dimensions associated with the items specified above. Please ensure that the drawings
   shall depict key cross sectional and plan views for all items specified above.
10. Our concerns listed in NOD Comment No. 25 of our October 27, 2011 letter, have not been
    adequately addressed. As stated previously, Drawing IIIB.2, Transfer Station Layout Plan, does
    not state what materials will be used to construct the contaminated water tank. In accordance
    with 30 TAC §s30.63(b)(2)(D), please revise this drawing to include the type of materials that
    will be used to construct the contaminated water tank.
11.   Our concerns listed in NOD Comment No. 26 of our October 27, 2011 letter, have not been
      adequately addressed. As stated previously, the RA does not include construction details of
      slab and subsurface supports of all storage and processing components. In accordance with 30
      TAC §s30.63(b)(2)(E), please revise the RA to include generalized construction details of slab
      and subsurface supports of all storage and processing components. Please ensure that the
      drawings shall depict key cross sectional and plan views for all items specified above. ·
12. Our concerns listed in NOD Comment No. 27 of our October 27, 2011 letter, have not been
    adequately addressed. It is noted that Part II, Appendix IIE, Endangered or Threatened
    Species Documentation, has identified several locations within the registration boundary that
    may be potential habitats for the following endangered and/or threatened species: the white-
    face ibis, the wood stork, the creek chubsucker, and the timber rattlesnake. Please note that
    Part III ofthe RA does not address the regulations contained in 30 TAC §s30.63(b)(5)
    regarding endangered species protection. In accordance with the cited rule, please provide a
    discussion regarding how the facility will be designed to protect the potential habitats of the
    endangered and/or threatened species mentioned above.
13, In response to NOD Comment No. 30 of our October 27, 2011 letter, the facility stated that the
    requirements of 30 TAC §330.459(c) are not applicable because thcywill only accept ·
    construction and demolition waste. Please note the requirements of 30 TAC §330-459(c) are
    applicable to all MSW storage and processing facilities. As stated previously, the facility's
    closure plan has not addressed the regulations associated with 30 TAC §s30.459(c), regarding
    evidence of a release from an MSW unit. Please revise the facility's closure plan to address the
    cited rule.
14. Part III, Appendix IIID2, page IIID2-1, states, "After the registration application is approved by
    TCEQ, Pintail Landfill, LLC will file the required financial assurance. A copy of the required
    documentation will be submitted to the executive director of the TCEQ within 60 days from
    issuance of the registration." Please note that in accordance with 30 TAC §330.63U), the
    facility is required to submit a copy of the documentation required to demonstrate financial
    assurance as specified in 30 TAC Chapter 37, Subchapter R (relating to Financial Assurance for
    MSW Facilities) 60 clays prior to the initial receipt of waste. Please revise the statement above
    to ensure that the facility will submit a copy of the documentation required to demonstrate
    financial assurance as specified in 30 TAC Chapter 37, Subchapter R, 60 clays prior to the initial
    receipt of waste.
                                                                                                              •I
                                                                                                              I'I
                                                                                                               I
Mr. Ernest Kaufmann
Page4
February 17, 2012


15. The closure cost estimates provided in Part III, Appendix IIID, Table IIID-1 and Appendix
    IIID1, page IIID1-4 do not include the cost for disposal of the contaminated water contained in
    the 5,000 galion conta111i11ated Y\1ater storage tanlz, In accordance :1vith 3-0 T.AC §330.505 1
    Closure Cost Estimates for Storage and Processing Units, please revise the closure cost
    estimates for the facility to ensure that they will include the cost for disposal of the
    contaminated water contained in the 5,000 gallon contaminated water storage tank.
16. Part III, page IIIA-4, states, "A water supply required to clean the tipping floor will be provided
    by a nearby water well and/or a pressurized tank. Hose bibs and hoses located on the west and
    north walls of the building will be used to wash dowi1 the concrete tipping floor." Please note
    that Part III of the RA does not include information regarding the pressurized water tank. In
    accordance with 30 TAC §330.63(b)(2)(D), please provide the generalized construction details
    associated with the pressurized water tank Please ensure to discuss the tank volume and what
    materials will be used to construct the tank. In addition, in accordance with 30 TAC
    §s30.63(b)(2)(B), please Include the location of the pressurized water tank on the facility's Site
    Layout Plan.
17. Our concerns listed in NOD Comment No. 36 of our October 27, 2011 letter, have not been
    adequately addressed. As stated previously, Section 6, Fire Protection Plan, page IV-9, has not
    demonstrated that an adequate supply of water under pressure is available for firefighting
    purposes. In accordance with 30 TAC §330.221(a) and (c), please revise this section to include
    a discussion demonstrating that an adequate supply of water under pressure is available for
    firefighting purposes. Please ensure to discuss the water sources, the amount of water available
    from each source, the location of each water source, and the water under pressure available for
    fire protection purposes. If water tanks will be used to store water, please provide the location,
    the volume of water that will be stored, and the water pressure available for firefighting
    purposes. Also, please ensure to discuss why the supply of water under pressure at the facility is
    adequate for firefighting purposes.
Part IV and Part IV Attachments
18. Part IV, Section 2.2, page IV-3, states, "If waste is stored, it vrul be stored in the transfer station
    building or in securely covered transfer trailers and/ or roll-off boxes located within the building
    or parked in the designated parking area outside the building." Please note that the location(s)
    where waste will be stored outdoors has not been depicted in the facility's site layout plan. In
    accordance with 30 TAC §330.63(b)(2)(B), please revise Drawing IIIB.2, Transfer Station
    Layout Plan, to ensure that all location(s) where waste will be stored outdoors are depicted.
19. Our concerns listed in NOD Comment No. 37 of our October 27, 2011 letter, have not been
    adequately addressed. It is noted that Part IV, Section 7.i.1, page IV-12, states, "The property
    will be fenced at the transfer station's registration boundary with barb wire fencing on all
    sides," Please note that in accordance with 30 TAC §s30.223(c), access to the facility must be
    controlled by a perimeter fence, consisting of a four-foot barbed wire fence or a six-foot chain-
    link fence or equivalent, and have lockable gates. Please note that the statement provided
    above does not include a description regarding the height of the barbed wire fence. In
    accordance with the cited rule, please revise the statement above to include the height of the
    facility perimeter fence and specify whether the fence vdll include lockable gates. In addition, it
    is noted that Drawing IIA.11 states, "Access control will be provided by fence along registration
    boundary or property boundary." Please note that the location of the perimeter fence stated in
    Drawing IIA.11 is not consistent with the location provided in Part IV, Section 7.i.1, page IV-12.
    Please revise these documents to ensure that they will include consistent information regarding
    the location of the facility perimeter fence.
Mr. Ernest Kaufmann
Page 5
February 17, 2012


20. Our concerns listed in NOD Comment No. 38 of our October 27, 2011 letter, have not been
    adequately addressed. Part IV, Section 7.4, Operating Hours, page IV-14, states, "The Pintail
    Landfill Transfer Station is authorized for waste acceptance from 3:00 a.m. to 5 p.m., Monday
    through Friday and from 3:00 a.m. to 1:00 p.m. on Saturday.... The Pintail Landfill Transfer
    Station is authorized for facility operations 24 hours per day, 7 days a week." Please note that
    the waste acceptance and operating houts specified above are not in compliance with 30 TAC
    §330.229(a), regarding operating hours. In accordance with the cited rule please revise the
    facility waste acceptance and operating hours to ensure that waste acceptance hours will be any
    time between the hours of 7:00 a.m. and 7:00 p.m., Monday through Friday, and that the
    facility operating hours will be anytime between the hours of 5:00 a.m. and 9:00 p.m., Monday
    through Friday. Please note that if the faciiily would like to request alternative waste
    acceptance and operating honrs from the hours specified in 30 TAC §330.229(a), they must
    include justification regarding why alternative waste acceptance and operating hours are
    necessary. If the facility wonld like to request alternative waste acceptance and operating
    hours, please revise this section to include justification regarding why alternative waste
    acceptance and operating hours are necessary.
   In addition, it is not clear what measures will be implemented at the facility to reduce the noise
   that will be created due to the proposed alternative waste acceptance and operating hours.
   Please provide a discussion regarding what measures will be implemented to rednce the noise
   that may be created from the proposed alternative waste acceptance and operating hours.
21. In response to NOD Comment No, 39 of our October 27, 2011 letter, the facility states,
    "§330.203(e) and 330.205(a) ... are not applicable since the Pintail Landfill Transfer Station
    will accept only construction and demolition wastes that will not require sampling, testing, and
    specifications of waste characteristics.· The facility will not generate wastes", Please note that
    although the requirements of 30 TAC §s30.203(c) and §330.205(a) may not be applicable to
    the construction and demolition wastes received, this rule is applicable to the contaminated
    water (i.e. wash water) generated by the facility. Please revise Part IV of the RA to include a
    discussion regarding the regulations contained in 30 TAC §330.203(c) and §330.205(a)
    regarding facility generated waste.
22. Our concerns listed in NOD Comment No. 39 of onr October 27, 2011 letter, have not been
    adequately addressed. Please note that the RA does not address the regulations associated with
    30 TAC §330.245(b) and (j), regarding ventilation. and air pollution control. Please revise Part
    IV of the RA to include a discussion regarding the regulations stated above,
Please submit an original and three (3) copies of your application revisions within 30 days of the
date of this letter. Your response must be in a form that allows for the replacement of application
pages with the revised pages. According to 30 TAC §s30.57(g)(6), revisions must have a re1~sion
date and note that the sheet is revised in the header or footer of each revised sheet or page. The
revised text must be marked to highlight the revision, Since yom application is under technical
review, please use the label, "Tech-Revision# (date)" to identify your NOD response. In
accordance with 30 TAC §so5.44, please include an original certification statement with the
revision. Along with the original signature, tlrn certification statement should indicate the name,
title, and address of the responsible official. Failure to submit a satisfactory response to each of the
noted deficiencies may result in the application being returned due to technical deficiencies.
Please note we do not anticipate granting an extension of time to fulfill this request, Also, please be
aware a third notice of technical deficiency will not be issued.
                                                                                          ..


Mr. Ernest Kaufmann
Page 6
February 17, 2012

If you have any questions, please contact me at (512) 239-2580. When addressing written
correspondence, please use mail code MC 12+
Sincerely,

  /2L.         ~()
Ruben Meza, Jr., Engineering Specialist
Municipal Solid Waste Permits Section
Waste Permits Division
Texas Commission on Environmental Quality
RM/sm
cc:  Mr. KennethJ. Welch, P.R., Biggs & Mathews Environmental, Mansfield
Buddy Garcia, Chairman
Larry R. Soward, Cominissioner
Bryan W. Shaw, Ph.D., Co1nmissioner
Mark R. Vickery, P,G., Executive Director

                        TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
                                       Protecting Texas by Reducing and Preventing Pollution

                                                          April 12,   2012


    Mr. Ernest Kaufmann
    Manager
    Pintail Landfill, LLC
    24644 Highway 6
    Hempstead, Texas 77445
    Re:       Pintail Landfill Transfer Station - Waller County
              Municipal Solid Waste (MSW) - Registration No. 40259
              Registration Application (RA) -Technical Notice of Deficiency (NOD)
              Tracldng No. 15522621; RN106192735/CN603939349
    Dear Mr. Kaufmann:
    The MSW Permits Section has completed the re,1ew of the RA dated August 1, 2011, and the
    revisions dated August 8, 2011, August 29, 2011, Novemberi6, 2011, January 18, 2012, and
    March 15; 2012. The application was prepared by Biggs and Mathews Environmental and
    submitted on behalfof Pintail Landfill, LLC. Additional information must be presented to
    demonstrate compliance v.1th Title 30 of the Texas Administrative Code (30 TAC} Chapter 305
    and Chapter 330. The information requested below ls necessaryfor a complete RA and must be
    addressed prior to further technical review. When making revisions to maps, drav.fogs, and
    figures which are replicated throughout the application, each map, drawing, and figure needs to
    be revised throughout the application.
     A. Dated cover letter transmitting the revised RA should accompany the l'evised application;
     B. Each item of concern should be addressed in the transmittal letter and the applicant's
        response to the item should be immediately following the item of concern;
     C. The applicant should indicate where in the revised RA the revisions have been made by
        reference to part, section, and page number; and
     D. Please include an original certification statement with the revision, in accordance with 30
        TAC Section (§)30544. The certification statement should indicate the name, title, and
        address of the responsible official.
     Part II and Part II Attachments
     1.   Our concerns listed in NOD Comment No. 3 of our February 17, 2012 letter, have not been
          adequately addressed. As stated previously, Part II of the RA does not include a response
          from the Texas Department of Transportation (TXDOT) regarding the applicants request for
          coordination. In accordance with 30 TAC §s30.6l(i)(4), please submit the response from
          TXDOT to demonstrate coordination. Please ensure to provide documentation that TXDOT
          has reviewed the new location of the facility's site entrance.
     2. Our concerns listed in NOD Comment No. 4 of our February 17, 2012 letter, have not been
        adequately addressed. As stated previously, the RA does not include a review letter from the
        Texas Historical Commission documenting compliance with the Natural Resources Code,




           P.O. Box 13087"    •   Austin, Texas   78711~3087   •   512-239-1000   •   Internet address: www.tceq.state.tx,us
                                                                                                     ""--,.




Mr. Ernest Kaufmann
Page2
April 12, 2012


    Chapter 191, Texas Antiquities Code. In accordance with 30 TAC §330.61(0), please revise
    Part II of the RA to inciude a review letter from the Texas Historical Commission
    documenting compliance with the Natural Resources Code, Chapter 191.
Part III and Part III Attachments
3. Our concerns listed in NOD Comment No. 11 of our Februaxy 17, 2012 letter, have not been
   adequately addressed. As stated previously, the RA does not include construction details of
   subsurface supports ofall storage and processing components. Please revise the RA to
   include a statement verifying whether ti1ere are any subsurface supports associated with the
   facility. In accordance with 30 TAC§330.63(b)(2)(E), if there are any subsurface supports
   associated with the transfer station, please revise the RA to include generalized construction
   details of all subsurface supports associated with the facility. Please ensure that the
   drawings shall depict key cross sectional and plan views for all items specified above.
4, The closure cost estimates provided in Part III, Appendix IIID1, page IIID1-4 provides a
   lump smn of $s,ooo for general cleanup, The RA states that this includes washdown and
   disinfection of the facility as well as disposal of the contaminated water. Please revise the
   closure cost estimate calculations on page IIID1-4, to provide at a minimum, a separate line
   item estimate of the cost associated with washdown, disinfection, disposal of contaminated
   water, and the transportation costs associated with disposal of the contaminated water.
5. In response to NOD Comment No. 15 ofour February 17, 2012 letter, the facility provided a
   cost estimate for the disposal of contamhiated water at $0.05 per gallon. Please provide
   verification from an independent 3"d party processor that includes the unit cost for disposal
   of contaminated water that is provided in the facility's. closure cost estimate. Please ensure
   that the information provided will include the unit cost for disposal of the contaminated
   water quoted in the facility's closure cost estimate, shall be signed by the person who
   provided the estimate, and will include the person's contact information.
Part IV and Part IV Attachments
6. Part IV, Section 2.2, Volume and Rate of Transfer, page IV-3, states, "If waste is stored, it
   will be stored in the transfer station building or in securely covered transfer trailers and/or
   roll "off boxes located within the bnilding or parked in the designated parldng area outside
   the building." It appears that the facility is proposing to store C & D waste in transfer
   trailers and/or roll"off boxes outdoors. Please verify whether C & D waste will be stored
   outdoors in the transfer trailer/roll-off storage area. In addition, if waste will be stored
   outdoors, please revise the RA to include a discussion regarding how the outdoor waste
   storage units and area will be in compliance with 30 TAC §330.63(b)(2)(D), general
   construction details; 30 TAC §J30.63(b)(4), water pollution control; 30 TAC §330.63(d),
   waste management unit design; and 30 TAC §330.207, contaminated water management.
7. Part IV, Section 3, Contaminated Water Management, page IV "4, states, "The contaminated
   water will then be transported offsite for treatment, testing, and disposal at a publicly owned
   treatment works .(POTW) or a properly permitted treatment facility in accordance V11th its
   sampling and analysis plan." The RA does not specify which facility will be used to treat and
   dispose of the contaminated water generated onsite. In accordance with 30 TAC                ·
   §330.205(a) and Cb), please provide the name and permit number of the treatment facility
   that will be used to treat and dispose of the contaminated water generated onsite. In
Mr. Ernest Kaufmann
Page3
April 12, 2012


      addition it is not clear whether the contaminated water generated onsite will be sampled and
      analyzed in accordance with 30 TAC §330.203(c)(2). Please revise this section to ensure
      that: at a minimum, effluent from the facility will be analyzed annually for TPR, fats, oil and
      grease, and pH; records of each analysis will be maintained at the facility for a minimum of
      three years; and that all sampling and analysis shall be done according to EPA-approved
      methods.
8. The RA does not specify how often the contaminated water contained within the 5,000
   gallon contaminated water storage tank will be disposed. In accordance with 30 TAC
   §330.205, please revise Part IV, Section 3, Contaminated Water Management, to specify how
   often the contaminated water contained within the 5,000 gallon contaminated water storage
   tank will be disposed.
9. Part IV, Section 4.1, states, "All solid wastes will he .stored in a manner to prevent fires,
   ensnre safety, control animals, control vectors, and contained to prevent windblown solid
   waste and litter." Please note that the statement above does not inclnde procednres
   regarding how the facility will ensure that these requirements are achieved. In accordance
   with 30 TAC §330.65(a) and §330.209(b), please revise this section to include procedures
   regarding how odors, vectors, and windblown waste will be managed from all on-site waste
   and recyclable material storage areas.
10.   Part IV, Section 7.14, Employee Sanitation Facilities, page IV-19, states that, "Sanitary
      facilities are provided for all employees and visitors at the transfer station ... Portable
      sanitary facilities will be provided." It appears that all onsite domestic wastewater will be
      managed by a private contractor. Please clarify whether the private contractor will remove
      and properly disposed of all oruite domestic wastewater. In addition, please certify that
      domestic wastewater will not be placed in the facility's contaminated water tank.
11.   Part IV, Section 7.6, page IV-15, states, "The facility will provide litter control devices, as
      necessary, at appropriate locations near the tipping floor and elsewhere. The lltter control
      devices will be constructed of appropriate materials for the control of windblown material
      and liter." Please note that the RA does not specify what devices will be nsed to control
      windblown material and litter, and does not describe when these dm~ses will be
      implemented. In accordance with 30 TAC §330.233(a)(1), please revise this section to
      provide a discussion regarding what devices will be used to control windblown material and
      litter; and the procednres of when these devices will be implemented.
12.   Part IV, Section 8~1, Personnel, page IV-21, describes the role of the landfill manger in
      relation to the transfer station. Please note that the facility has submitted a RA for the
      construction and operation of a transfer station and all information in the RA shonld be
      pertaining to the transfer station. As snch, please ensnre that all information regarding the
      landfill manger is removed from the RA.
13. Part IV, Section 9.2.3, Facility Entrance Road, page IV-28, states, "Roadways are one way to
    expedite traffic flow." Please note that Figure IIIB.1, General Site Plan, and Figure IIIBA,
    Waste Processing Plan, depict the internal facility roadways as a two lane road and not two
    separate one way roads. Please revise the statement above to reflect tbe type of road that
    will be used for the internal facility roadways.
                                                                                                    •·   ,,.




Mr. Ernest Kaufmann
Page4
April 12, 2012


Please submit an original and three (3) mpies of your application revisions within 30 days of the
date of this letter .. Your response must be h1 a fortr1 that allows for tl1e replacen1ent of
application pages with the revised pages. According to 30 TAC §330.57(g)(6}, revisions must
have a revision date and note that the sheet is revised in the header or footer of each revised
sheet or page. The revised text 1nust be marked to highlight the revision. Since yonr application
is under technical review, please use the label, "Tech-Revision# (date)" to identify your NOD
response. In accordance with 30 TAC §305-44, please include an original certification
statement with the revision. Along with the original signature, the certification statement
should indicate the name, title, and address of the responsible official. Failure to submit a
satisfactory response to each of the noted deficiencies may result in the application being
returned due to technical deficiencies.
If you have any questions, please contact me at (512) 239-2580. When addressing written
correspondence, please use mail code MC 124.
Sincerely,

   ~~~
Ruben Meza, Jr., Engineering Specialist
Municipal Solid Waste Permits Section
Waste Permits Division
Texas Commission on Environmental Quality
RM/sdm
cc:  Mr. Kenneth J. Welch, P.E., Biggs & Mathews Environmental, Mansfield
Ilryan '"'· Shaw, Ph,D., Chai1"1nan
Carlos Rubinstein, Connnissioner
Toby Baker1 C01nn1issione1'
Zak Covar, Executive Dii•ecto1·


                         TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
                                          Protecting Texas by Reducing and Preventing Poll11tion

                                                              June 25, 2012

      Mr . Ernest Kaufmann
      Manager
      Pintail Landfill, LLC
      P.O. Box969
      Hempstead, Texas 77445
      Re:   Pintail Landfill Transfer Station - Waller County
            Municipal Solid Waste (MSW) - Registration No. 40259
            Registration Application (RA) - Technical Notice of Deficiency (NOD)
            Tracking No. 15897509; RN106192735/CN603939349
      Dear Mr. Kaufmann:
     The MSW Permits Section has completed the review of the RA dated August 1, 2011, and the
     revisions elated August 8, 2011, August 29, 2011, November 16, 2011, January 18, 2012, March
     15, 2012, and May 31, 2012. The application was prepared by Biggs and Mathews
     Environmental and submitted on behalf of Pintail Landfill, LLC. Additional information must
     be presented to demonstrate compliance with Title 30 of the Texas Administrative Code (30
     TAC) Chapter 305 and Chapter 330. The information requested below is necessary for a
     complete RA ancl must be addressed prior to further technical review. When making revisions
     to maps, drawings, and figures which are replicated throughout the application, each map,
     drnwing, and figure needs to be revised throughout the application.
     A Dated cover letter transmitting the revised RA should accompany the revised application;
      B. Each item of concern should be addressed in the transmittal letter and the applicant's
         response to the item should be immediately following the item of concern;
     C. The applicant should indicate where in the revised RA the revisions have been made by
        reference to part, section, and page number; and
     D. Please include an original certification statement with the revision, in accordance with 30
        TAC Section (§)305.44. The certification statement should indicate the name, title, and
        address of the responsible official.
     Part II and Pm1' II Attachments
     1. Part II, Appendix C, Texas Department of Transportation (TXDOT) Documentation,
        contains an April 24, 2012, letter from TXDOT regarding the applicants request for
        coordination. This letter states, "We have subsequently received a letter from Lee
        Engineering Dated March 13, 2012, requesting information regarding SH 6 and US 290 ...
        ancl we are working to compile information related to the roadway geometrics and historical
        traffic counts .... To this point, we have not received any formal traffic impact study or
        application for access permits to the site. Prior to malting any determination on potential
        traffic impacts of this proposed facility, om agency will require a full Traffic Impact
        Assessment from the applicant." Please note that we cannot declare the RA technically
        complete until TXDOT provides a determination regarding potential traffic impacts for this

                         P.O. Box 13087    •   Austin, Texas 78711-3087     °   512-239-1000   • 'tc:eq.texas.gov
~~~~~~~~~~~~




                                      H·ow is our custo1ner service?   tceq.texas.gov/customersurvey
Mr. Ernest Kaufmann
Page 2
 June 25, 2012


      site. Please revise the RA to include the Traffic Impact Assessment Report requested by
      TXDOT and their response to this report. In addition, please ensure that the RA will include
      all additional correspondence with TXDOT.
Please submit an original and three (3) copies of your application revisions within 30 days of the
date of this letter, Your response must be in a form that allows for the replacement of
application pages with the revised pages. According to 30 TAC §330.57(g)(6), revisions must
have a revision date and note that the sheet is revised in the header or footer of each revised
sheet or page. The revised text must be marked to highlight the revision. Since your application
is under technical review, please use the label, "Tech"Rcvision # (date)" to identify your NOD
response. In accordance with 30 TAC §305-44, please include an original certification
statement with the revision. Along with the original signature, the certification statement
should indicate the name, title, and addJ:ess of the responsible official. Failure to submit a
satisfactory response to each of the noted deficiencies niay result in the application being
returned due to technical deficiencies.
If yon have any questions, please contact me at (512) 239-2580. When addressing written
correspondence, please use mail code MC 124.
Sincerely,


 JJ,,,t<A, for- t7
Ruben Meza, Jr., Engineering Specialist
Municipal Solid Waste Permits Section
Waste Permits Division
Texas Commission on Environmental Quality
RM/sdm
cc:      Mr. Kenneth J. Welcl1, P.E., Biggs & Mathews Environmental, Mansfield
                                                                                                     r
Bryan W. Shaw, Ph.D., Chafrn1an
Carlos Rubinstein, Comndssioner
Toby Baker, Conunissioner
Zak Covar, Executive Director


                       TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
                                      Protecting Texas by Reducing and Preventing Pollution

                                                       August 16, 2012

    Mr. Ernest Kaufmann
    Manager
    Pintail Landfill, LLC
    P.O. Box969
    Hempstead, Texas 77445
     Re:      Pintail Landfill Transfer Station - Waller County
              Municipal Solid Waste (MS"W) - Registration No. 40259
              Registration Application (RA) ~Technical Notice of Deficiency (NOD)
              Tracking No. 15987368; RN106192735/CN603939349
     Dear Mr. Kaufmann:
     The MSW Permits Section has completed the review of the RA dated August 1, 2011, and the
     revisions dated August 8, 2011, August 29, 2011, November 16, 2011, January 18, 2012, March
     15, 2012, May 31, 2012, and July 20, 2012. The application was prepared by Biggs and Mathews
     Environmental and submitted on behalf of Pintail Landfill, LLC. Additional information must
     be presented to demonstrate compliance with Title 30 of the Texas Administrative Code (30
     TAC) Chapter 305 and Chapter 330. The information requested below is necessary for a
     complete RA and must be addressed prior to further technical review. When maldng revisions
     to maps, draV1ings, and figures which are replicated throughout the application, each map,
     drawing, and figure needs to be revised throughout the application.
     A. Dated cover letter transmitting the revised RA should accompany the revised application;
     B. Each item of concern should be addressed in the transmittal letter and the applicant's
        response to the item should be immediately following the item of concern;
     C. The applicant should indicate where in the revised RA the revisions have been made by
        reference to part, section, and page number; and
     D. Please include an original certification statement with the revision, in accordance with 30
        TAC Section (§)305-44· The certification statement should indicate the name, title, and
        address of the responsible official.
     Part II and Part II Attachments
     1. Part II, Appendix C,Texas Department of Transportation (TXDOT) Documentation,
        contains a June 25, 2012, Traffic Impact Analysis associated with the permit application that
        was submitted for MSW 2377, Pintail Landfill. This report contains extensive information
        regarding the traffic that will be generated by the proposed landfill and does not include a
        separate discussion regarding the proposed transfer station. In accordance with 30 TAC
        §330.61(i)(4), please revise Part II of the RA to include documentation of coordination with
        TXDOT for traffic and location restrictions concerning the proposed transfer station. Please
        ensure that the information submitted to TXDOT will address all applicable information
        contained in 30 TAC §330.61(i), regarding Transportation.


                         P.O. Box 13087   a   Austin, Texas 78711-3087   •   512-239-1000     •   tceq.texas.gov
                                    How is our customer service?   tceq.texas.gov/customersurvey
Mr. Ernest Kaufmann
Page2
August 16, 2012


Please submit an original and three (3) copies of your application revisions "Within 30 days of the
date of this letter. Your response must be in a form that allows for the replacement of
application pages with the revised pages. According to 30 TAC §330.57(g)(6), revisions must
have a revision date and note that the sheet is revised in the header or footer of each revised
sheet or page. The revised text must be marked to highlight the revision. Since your application
is under technical review, please use the label, "Tech-Revision# (date)" to identify your NOD
response. In accordance with 30 TAC §305-44, please include an original certification
statement with the revision. Along with the original signature, the certification statement
should indicate the name, title, and address of the responsible official. Failure to submit a
satisfactory response to each of the noted deficiencies may result in the application being
returned due to technical deficiencies.
If you have any questions, please contact me at (512) 239-2580. When addressing written
correspondence, please use mail code MC 124.
Sincerely,

  µ~r;
Ruben Meza, Jr., Engineering Specialist
Municipal Solid Waste Permits Section
Waste Permits Division
Texas Commission on Environmental Quality
RM/pt
cc:   Mr. Kenneth J. Welch, P.E., Biggs &Mathews Environmental, Mansfield
                  BIGGS & MATHEWS ENVIRONMENTA1R_E CE1VE0


 •
                  Consulting Engineers • Hydrogeologists
                  Mansfield • Wichita Falls

October 18, 2012


Mr. Ruben Meza, Jr., Engineering Specialist
Municipal Solid Waste Permits Section (MC-124)
Texas Commission on Environmental Quality
P.O. Box 13087
Austin, TX 78711-3087

Re:     Pintail Landfill Transfer Station -Waller County, Texas
        Municipal Solid Waste (MSW) Registration No. 40259
        Registration Application (RA) - Supplementary Information
        Tracking No. 15987368; RN106192735/CN603939349

 Dear Mr. Meza:

This supplementary information is submitted on behalf of Pintail Landfill, LLC. The Registration
Application for the proposed Pintail Landfill Transfer Station has been revised as discussed. One
original and three copies (one redline, two clean) are enclosed with this letter. A description of the
supplementary information is presented below.

       1. A final signed and sealed drawing of the registration boundary is provided. The final
          registration boundary drawing, identified as Drawing IC.1 - Pintail Facility Boundary Map,
          has been replaced to include the final boundary drawing.

       2. A permanent site benchmark has been established inside the Registration boundary. Two
          drawings depicting the permanent benchmark (Drawing llA.11 - General Site Plan and
          Drawing lllB.1 - General Site Plan) have been revised to show the site benchmark location
          that is within the Registration boundary.

       3. The well information provided in the registration has been updated. Revisions are provided
          to Part II, Section 8.1 - Wells within 500 Feet; Section 8.2 - Wells, Springs and Surface
          Water Bodies or other Water in the State within One Mile; Section 12.1 - Water Wells; and
          Section 12.2 - Oil and Gas Wells.

 We trust this supplemental information is satisfactory to you and meets the rules and regulations of
 the TCEQ. If you need additional information, please let us know.

 Sincerely,

 BIGGS & MATHEWS ENVIRONMENTAL




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  ennet . elch, P.E.                                                        rU
 Principal Engineer                                       PM            R/v\ elC\
 Attachments:     Part I Form - pages 1, 2 and 10             C. R      11 / 7 f I~
                  Revised Transfer Station Registration Application (original plus three copies)

 cc:     Pintail Landfill, LLC, c/o Mr. Ernest Kaufmann, President, Green Group Holdings, LLC


1700 Robert Road, Suite 100 • Mansfield, Texas 76063 • Phone: 817 -563-1144 • Fax: 817 -563-1224
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