Post Oak Landfill: Protestants file suit over TCEQ remand

 

A collection of landowners and local governments have filed a lawsuit in state district court challenging the failure of  the Texas Commission on Environmental Quality (TCEQ) to deny the permit application of   Post Oak Clean Green for a new landfill in Guadalupe County.  TCEQ remanded the application to the State Office of Administrative Hearings (SOAH) to give Post Oak a second chance to address a number of deficiencies, including the existence of unplugged oil and gas wells on the landfill site. The landfill is proposed for a site on the recharge zone of the Carrizo-Wilcox Aquifer.

 

The Post Oak landfill   has been a source of universal opposition from the local community since it was initially filed in 2011 for a number of reasons, primarily due to the threat to groundwater resources and the threat of bird-strikes with planes from Randolph Air Force Base used to train new pilots.

 

Stop Post Oak Dump, Guadalupe Count Groundwater Conservation District, Guadalupe County, the City of Seguin, the City of Schertz, and the Schertz-Seguin Local Government Corporation collectively challenged the issuance of the permit application at SOAH. A two-week evidentiary hearing was held in January 2016, where the collective Protestants offered technical evidence and expert witnesses to demonstrate the many deficiencies in the landfill application. Administrative Law Judges Bennett and Ramos released their opinion in September 2016 and, although they agreed that the “application does not comply with several requirements,” they made no recommendation regarding whether the permit should be issued.

 

In April 2017, the TCEQ Commissioners voted 2-1 to return the application to SOAH for further proceedings, despite agreeing that the application does not comply with several TCEQ regulations. One notable deficiency involved the presence of unplugged oil and gas wells located on the proposed landfill property that TCEQ rules required to be plugged by the time Post Oak filed its original application. One Commissioner agreed with the protesting parties that the failure of Post Oak to have plugged the wells requires denial of the permit.

 

The protesting parties filed their lawsuit in May, stating that the agency had violated its own rules when the Commissioners voted to remand the application for further revisions.

 

Links to articles regarding the case:

Motion could end Post Oak legal wrangle

 

Typical Schedules for Environmental Permitting at the Texas Commission on Environmental Quality (“TCEQ”)

There are three potential stages to TCEQ permit deliberations:  (1) an application to draft-permit stage, (2) a hearing stage, and (3) a post-hearing/pre-final-order stage.   For the overwhelming majority of permits, there is only stage (1) and a day or so for stage (3).  However, if members of the public become involved and try to have input to the agency decisionmaking process, stage (2) can occur and stage (3) can extend for a longer time.  Air pollution permits are subject to certain federal rules that do not apply to other environmental permits, and air pollution permits, therefore, are processed on a schedule that differs slightly from the schedule for processing other types of environmental permits.  The links, below, connect to more lengthy descriptions of the factors that affect timelines for both types of permits and of the actual periods of time that are involved in the two decisionmaking processes.

Please see the following PDFs:

Time Estimates for Contested Case Hearing Process for Air Permits at TCEQ (PDF)

Time Estimates for Contested Case Hearing Process for Non-Air Permits at TCEQ (PDF)

Your Local Government May Be Able to Help You

Although the TCEQ is the main regulator of polluters and the main enforcer of pollution permits, you might be surprised at the amount of power your local governments have to inspect permitted facilities to check for problems, to initiate enforcement proceedings against polluters, and, even, to pass ordinances that help control sources of pollution.  Please follow the link, immediately below, to a short paper on some of the powers you local government likely has to help you.

What Can Your Local Governments Do to Help with Pollution Problems?

Court Decision Makes Water Planning More Rational

Our firm recently scored a victory for its clients, Ward Timber and a number of landowners in Northeast Texas,  in the 11th Circuit Texas Court of Appeals.  Texas is divided into a number of water planning regions, and the issue in the case was whether the State had a duty to resolve conflicts among or between regional plans.  In this instance, there were cities in one region that wanted to build a reservoir in another region where the reservoir was not wanted.  Turns out, the State has a duty to resolve this conflict.  Follow this link for one-page summary of the case and its issues: Ward Timber Summary.

Also, for more information, see the court of appeals’ decision [Texas Water Development Bd. v. Ward Timber, Ltd., et al., 411 S.W.3d 554 (Tex. App – Eastland 2013)], and contemporaneous news coverage: [Texas Water Plan Being Questioned by Court,” by Kate Galbraith, Texas Tribune, May 29, 2013].