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Travis County, others granted party status in landfill case

Thursday, April 17, 2008 by Kimberly Reeves

An administrative law judge in the State Office of Administrative Hearings granted party status to all who sought it in Waste Management Texas’ expansion permit proceedings before the Texas Commission on Environmental Quality.


Those now given party status include the Northeast Action Group, Harris Branch Homeowners Association, City of Austin, Travis County and Texas Justice for All, as well as a number of individuals, said Houston environmental attorney Jim Blackburn, who is representing the Northeast Action Group in the proceedings.


Typically, an administrative law judge immediately would set a calendar for a permit application once party status is granted. Blackburn’s goal, however, is to slow down the speed of the proceedings. Waste Management asked for direct referral of its permit application before an administrative law judge, moving it to the front of the line for consideration. Blackburn has filed three motions to slow down, or reverse, that process.


“The neighborhood is faced with the prospect of having both Waste Management and Browning Ferris going to hearings at the same time,” Blackburn said. “Browning Ferris is on May 8. So we’ve got two landfill permits at the hearing stage at the same time, and we think that fact is going to deny us due process.”


At least, it makes it difficult to prepare two cases at the same time. However, it is ironic – or maybe fitting – that both landfill cases would be resolved on approximately the same period, given that local residents have frequently cursed both at the same time.


Travis County has no firm commitment with either Waste Management or Browning Ferris, although county leaders did seriously weigh signing a contract with Browning Ferris that would declare the county neutral on the landfill’s expansion if the landfill operator promised to vacate the site by 2015.


Neighbors called this proposed agreement between county and landfill “a deal with the devil.” County leaders eventually passed on signing the agreement, although the BFI’s draft permit application with TCEQ established an exit date of 2015.


County leaders eventually did choose to seek party status in the permit proceedings. Environmental Officer Jon White presented a letter to the administrative law judge that outlined the county’s principle reasons it wanted the state to deny the permit:

  • the expansion did not conform with the Capital Area Council of Governments’ Regional Solid Waste Management Plan;
  • the expansion was incompatible with existing and future land uses in the area; and
  • the applicant’s compliance history does not support an expansion. Waste Management was levied a hefty fine for non-compliance in 2004.


“In 2004, TCEQ assessed WMT the greatest fine ever levied on a MSW (municipal solid waste) operator in the State of Texas,” White wrote in a letter dated April 16. “Serious violations at WMT’s facility resulted in nuisance odors that severely affected neighbors and communities over an extended period of time. Given WMT’s history of serious violations at this site, there is a high risk of future violations. The impact of future violations will be all the more serious because of the intensity of development in the area.”


The letter also cited concerns about the draft permit: incorrect representation of the adjacent Travis County landfill; a point of compliance line that does not provide for adequate monitoring of potential groundwater contamination; and site operating procedures that are too vague to give the county much comfort.


An initial timeline has been set to deal with Blackburn’s motions. Reponses from the other parties are due by April 23. Blackburn has until April 28 to offer his reply. The administrative law judge should make a decision by the end of the month.


That will drive the eventual calendar for the hearing. In the case of an expansion permit hearing, the administrative law judge will hear and review all evidence in the case and make a recommendation to the three-commissioner panel at the Texas Commission of Environmental Quality. The three-commissioner panel makes the final decision on whether Waste Management is granted its expansion permit.

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