Jeremy L. Dillon
RW Monitor
4/18/2014
A Texas state court of appeals judge earlier this month denied a challenge by the Sierra Club against the byproduct disposal permit issued to Waste Control Specialists by the Texas Commission on Environmental Quality. The case centered on TCEQ’s denial to hold a contested-case hearing during the permitting process, an action, the Sierra Club argued, that subverted stakeholders’ ability to voice their opposition to the permit.
Judge Jeff Rose wrote in his opinion that it is up to TCEQ as the regulatory body to decide what affects public safety, and if TCEQ decides a contested hearing is not warranted, that is its lawful discretion. “TCEQ’s discretion over contested-case hearing requests naturally includes its “threshold” determination of whether the person seeking the hearing is an affected person, and in making that particular decision, TCEQ enjoys the discretion to weigh and resolve matters that may go to the merits of the underlying application, including the likely impact the regulated activity—here, underground disposal of by-product material—will have on the health, safety, and use of property by the hearing requestor and on the use of natural resources,” Rose wrote. “TCEQ’s inquiry into these and the other factors may include reference to the permit application, attached expert reports, the analysis and opinions of professionals on its staff, and any reports, opinions, and data it has before it, and importantly, the existence of substantial evidence in the record supporting TCEQ’s decision is a factor—often a dispositive factor—in determining whether TCEQ abused its discretion. This is so regardless of whether TCEQ held an evidentiary hearing, as long as the hearing requestor was afforded its regulatory rights to express his dissatisfaction with the proposed license and the agency did not refuse to consider the evidence offered in support of that dissatisfaction,” he wrote.
TCEQ praised the ruling. “We are very pleased with the Court of Appeals decision which upholds the Commission’s action regarding the denial of this hearing request,” TCEQ spokesman Terry Clawson said. “The Commission takes seriously its obligations to uphold the law – as was done in this case.”
Ruling May Set Precedent
However, Cyrus Reed, director of the Lone Star Chapter of the Sierra Club, told RW Monitor this week that the ruling could set a dangerous administrative precedent that denies a citizen’s right to a contested hearing. TCEQ argued that the members of the Sierra Club who requested a hearing did not live close enough to make the public health claims, but Reed argued that administrative process in Texas to receive a hearing invokes a low burden of proof. As long as the person requesting the hearing has some connection to the area, such as living near the area, owning land in the area, or visiting the area often, TCEQ needs to grant that request, Reed said. “The reason I say its circular is because, if the judgment of that judge would hold true, you would never really get a contested hearing because TCEQ is the expert, and they say it’s not going to affect you, and therefore the judgment has already been made,” Reed said. “The whole purpose of a contested case hearing is to say there are cases where the state errs in their judgment in giving a license or recommending giving a license, so you have a contested hearing to make sure the state didn’t err. We are pretty concerned that this judgment could have wider implications than just this particular case, that it could be applied widely.” Reed said that the organization would continue to pursue the suit through a re-hearing or potentially to the state Supreme Court.
The precedent concern especially comes into play with the Sierra Club’s other pending legislation against TCEQ for the same reasons as the by-product permitting, although this suit deals with the permitting of WCS’ low-level waste acceptance. A district court judge in this case ruled in favor of the Sierra Club, but TCEQ appealed the case, sending it to the same court that made the ruling in the by-product permitting case. Reed worried that the by-product ruling would be used to strike down the other suit.
