### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-000102- CV

Sierra Club, Appellan t

v. Texas Com m ission on En vironm ental Quali ty and Waste Control Specialists, Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 201 ST JUDICI AL DISTRICT NO. D-1 -GN-0 8-0 0302 1, H ONO RAB LE LO RA J. LI VINGSTO N, JUDGE P RESIDING

O P I N I O N

Sierra Club appea ls from a judgme nt upholding the Texas Commi ssion on Environmental Quality ’s (TCEQ) denial of Sierr a Club’s reque st for a c ontested-c ase he aring in a licensing matter befor e the ag ency . On appea l, Sierra Club argues that it was entitled to a contestedcase hear ing beca

use its reque st complied with TCEQ regulations and demonstrated that at least one member of its org anizati o n h as an aff ecte d justiciable interest in the ag ency ’s proposed action. Sierra Club also complains that the district court err ed by “ig noring ” Sierra Club’s newly discovere d evidenc e. We will affir

m the district court’s judg ment.

BACK GR OUND A p p e ll e e Wa s te Co n tr o l Sp e c ia lists (WCS ) is a waste- contr o l c o mp a ny s p e c ia li zi n g in the treatment, storag e, and disposal of radioa ctive, hazardous, and mix ed waste. Since 1997, WC S has held licenses to store, proce ss, and manag e cer tain ty pes of radioa ctive materia ls at a 36-ac rewaste- d i s p o s al fac ility in Andre ws County , Texas. The disposal fac ility , which is situated on a

14,900-ac re former ranc h that extends into L ea County , New Me x ico, is about 250 fee t east of the Texas–New Mexi co state line, five miles east of Eunice, New Mexi co, and thirt y m i l es west of Andre ws, Texas. 1

I n J une 2004, WC S appl i ed t o the Texas Depa rtment of State Hea lth Service s (TDSHS) for a license to construct a 16-ac re landfill on its Andre ws County proper ty to dispose of materia l it was holding under an exis ting license to collect, proce ss, and store by -produc t materia l. 2 The by -produc t materia l WC S seeks to dispose of comes from a U.S. Depa rtment of Energy fac ility in Fe rnald, Ohio that had produce d high- purity uranium metal for U.S. defe nse prog rams since 1952. The Fe rnald fac ility was closed in 1989 and desig nated a fede ral “Superf und” site under the fede ral Comprehensive Environmental Response, Compensation, and L iabilit y Act of 1980 (CERCL A), Pub. L

. No. 96-510, 94 Stat. 2767 (codifie d as amende d at 42 U.S.C. §§ 9601–9626). In compliance 3

This fac ility has been and is the subject of numerous lawsuits. See, e.g. , In re Sierra Club , 1 420 S

. W

. 3 d 153 (Tex. App.—El Paso Nov. 28, 2012, orig

. proce eding ); Sierra Club v. Andrews Cnty. , 418 S.W .3d 711 (Tex. App.—El Paso 2013, pet. filed); Texas Comm’n on Env tl. Quality v. Sierra Club , No. 03-12-00625- CV, 2014 WL 902513 (Tex. App.—Austin Mar. 7, 2014, no pet. h.); In re Sierra Club , No. 03-12-00712- CV, 2012 WL 6554812 (Tex. App.—Austin Dec

. 14 , 2 0 1 2 , orig

. proceeding , mem. op.); In re Sierra Club , No. 08-12-00282- CV, 2012 WL 5949789 (Tex. App.—El Paso Nov. 28, 2012, orig

. proce eding , mem. op.); Texas Comm’n on Envtl. Quality v. Sierra Club , No. 03-12-000335- CV (Tex. App.—Austin) (pending ).

“B y -produc t materia l” is radioa ctive tailings or wastes produce d i n connec tion with 2 uranium or thorium ore proce ssing. See Tex. Hea lth & Safety Code § 401.003(3)( B) (def ining “by

product materia l”); 25 Tex. Admin. Code § 289.260 (2007) (TDSHS, L i ce n s i n g of Ura nium Recove ry and B y product Mate rial Disposal F acilities). CERCL A was “desig ned to promote the ‘timely clea nup of hazardous waste sites’ and to 3 ensure that the costs of such clea nup eff orts wer e borne by those responsible for the contamination.” Burlington N. & Santa Fe Ry. Co. v. United States , 556 U.S. 599, 602 (2009). A CERCL A 2with a clea nup plan established pursuant to CERCL A require ments, Fe rnald’s uranium by -produc t
waste—a pp ro x i m ately 8,900 cubic y ards of slurry —was stabiliz ed with “fly ash and Portland

ceme nt,” and the resulting “conc rete monoliths ” wer e then seale d in larg e (6x6 fee t), one-inc h thick
cylindrical car

bon-steel container s meeting fede ral regulations for shippi n g radioa ctive materia ls,

see 49 C.F.R. §§ 171.1–180.605 (De partment of Transpor tation, Hazardous Materia ls Reg ulations), and transporte d to WC S’s Andre ws County fac ility on flatbed trailers. WC S’s landfill application
to TCEQ, which included plans for the desig n, construction, opera tion, and future closure of the by

p roduct disposal fac ility , proposed the construction of a 16-ac re below-grade landfill that wo u l d

co n s i s t of six cells—ea ch lined with clay , sy nthetic liners, leak- detec tion sy stems, and leac hatecollection sy stems—desig ned to hold t h e ca rbon-stee l cylinders shipped from the Fe rnald site. WC S’s proposed desig n for its fac ility included various other safe g uards, including berms to divert and collect rainwater, g roundwater-monitoring sy stems, surfa ce- water monitoring sy stems, and airquality monitoring sy stems. Whil e TDSHS was conducting its technica l revie w of WC S’s application, the
L eg islature transfe rre d regulatory responsibility for issuance of by -produc t disposal licenses to TCEQ, which continued and subsequent l y co m pleted the technica l revie w of WC S’s application under TDSHS reg

ulations. See Tex. Hea lth & Safety Code § 401.2625 (g ranting to TCEQ the “sole and exclusive authority to g rant, deny , rene w, revoke , suspend, amend, or withdraw licenses for

source materia l rec overy and proce ssing or for storag e, proce ssing, or disposal of by product materia l”); see also id. § 33(k)( 1) (re quiring TCEQ to complete ong oing revie ws using TDSHS
“Superf und site” is a place considere d a national priority for environmenta l reme diation beca use of known or thre atene d rele ases of hazardous substance s at that site. See 42 U.S.C. §§ 9601–9626.

3regulations); 25 Tex. Admin. Code §§ 2 89.3–.301 (2007) (TDSHS, Radiation Control) (TDSHS

radiation-control regulations). After completing the technica l revie w of WC S’s appl i cation in

acc ordanc e with statutory and regulatory require ments, including an environmenta l analy sis, TCEQ decla red WCS’s application administratively complete and issued a dra ft license f or public notice in October

2007. Appellan t S i err a Club, among others, timely submitt ed written comments to the draf t license that, g ener ally stated, challeng ed WC S’s char acte rization of th e site’s hy drolog y , g eolog y , sedimentolog y , and hy drog eolog y ; raised conce rns reg arding what Sierra Club considere d
to be a lack of site data and improper g roundwa ter monitoring plans; and highlig hted what it considere d to be t h e ap p l i cation’s defic ient analy sis of the impact of high winds that can occur
at the site. Sierra Club also reque sted a contested- case hear ing on the merits of WC S’s application,

asser ting that two of its members who lived in Eunice, New Mexi co and relied on water wells in the

are a would be aff

ecte d by the issuance of the proposed license. Specifica lly , Sierra Club argued that the proposed pe rmit would harm Gar dner, w ho lives and oper ates a fee d store busi ness four miles from the pr oposed fa cility and owns a

florist shop in downtown Eunice, in the following way s:

• “Ne g ative publicity surrounding the opening of the radioa ctive waste site” will keep people from doing business with her;

• “[a]ny dispersal of radioa ctive materia l from the site” or any traff ic acc ident “involving tox ic or radioa ctive materia l” will potentially aff ect her business and health beca use she trave ls on a road near the proposed f

acility ;

• any g roundwater contamination from the fac ility will contaminate the alfa lfa she g rows for her fee d business and livestock b ecause the water well she uses is “potentially hy drolog ically connec ted to g roundwater re source s” in the vicinity of the propose d site;

4• the possibili ty that “wa ste from the rec ently permitted uranium en ri chment plant” in

Gar dner’ s home state of New Mexi co could be disposed of at the proposed WC S Texas site beca use that waste might be by -produc t material—e ven thoug h Sierra Club does not believe this would be authorized under the proposed license—w hich would aff e c t G a r d n e r b e c a u s e th a t w a s te “could trave l near ” Ga rdner ’s home and busine sses;

• any off- site and on-site acc idents that occur in connec tion with the railca r transporta tion of by -produc t mater ials would aff ect Gar dner beca

use the railroa d passes “rig ht near an are a that Ms. Gardne r often tr avels by ”;

• the hy drolog ical formations underly ing her home and businesses also underlie the proposed waste f acility ; and

• “[h] igh, singl e d i re ct ion winds trave ling westwa rd from the site” could aff ect Gar dner’ s proper ty , livelihood, and health beca use those winds might disperse “ra dioactive materia l s and surfa ce w ater

contaminated by

radioa ctive wa ste.”

Sierra Club’s reque st asser ted simil ar adver se eff

ects from the proposed license reg arding its other member, Wil liams, including alleg ing that her home is near the railwa y line and road wher e traff ic is likely to be heavy , that wind dispersion of radioa ctive materia ls would rea ch her, that g roundwater contamination would aff

ect her wells, and that she and her family have to trave l on roads that pass direc tly by the proposed site to re ach shopping and medica l fac iliti es. Both TCEQ’s executive direc tor and WC S rec ommended that Sierra Club’s hear ing
reque st be denied. The Offic e of Public I ntere st Counsel rec ommended g ranting the hear ing reque st 4 beca use it felt that Sierra Club had complied with the require ments for associational standing

. After

a public hear ing addre ssing these and other public comments and hear ing reque sts, TCEQ’s commissioners voted to deny Sierra Club’s reque st for a contested- case hear ing and g rant the
reque sted license to WCS—L icense R05807.

The Offic e of Public Intere st Counsel “re prese nt[ s] the public interest as a party to matters 4 befor e [TCEQ] .” Te x . Water Code § 5.271. 5After exhausting its administrative reme dies, Sierra Club filed t his suit for judicial revie w in Travis County District Court, asking the district court to reve rse and rem an d T C E Q’ s decision to deny Sierra Club’s hear ing reque st and to g ran t t h e b y -produc t license or, in the alternative, to rema

nd the matter to TCEQ for a contested- case h ea ri n g o n S ierra Club’s hear ing
reque st. Durin g t h e district court proce eding s, Sierra Club filed a motion for partial summary judgme nt on the issue of whether TCEQ err ed in denying Sierra Club’s reque st for a contested- case hear ing. A lthough ne ither TCEQ nor WCS filed cross-motions for summary judgme nt, they

fully briefe d the issue, and the re co rd i n d icates that the district court trea ted the subsequent summary judgme nt hear ing as a full trial on the m erits. Specifica lly , the di s t ri ct co urt denied Si err a C lub’s
summary -judg ment motion and order ed that Sierra Club take n o t h i n g o n its claims rela ted to TCEQ’s denial of i ts hear ing reque st. I n response , Sierra Club filed a motion for re co n s i d er ati on and, whil e t hat motion was pending , filed a motion seeking to prese nt new evidenc e it alleg ed to have rec ently discovere d—i.e., two internal TCEQ memos that wer e not pa rt of the administrative

rec ord—re lating to its hear ing reque st and the permit. I n a fi nal order , the district court denied Sierra Club’s pending motions, rea ffirme d its jud gm en t ag ainst Sierra Club, and gra nted TC EQ’s and WC S’s pending pleas to the jurisdiction and motions to dismiss

. I t is from this final order that Sierra Club now a

ppeals.

ANALYSIS On appea l, Sierra Club challeng es (1) TCEQ’s decisio n t o deny its contested- case hear ing reque st and (2) the district court’s ref usal to consid er S ierra Club’s newly discovere d evidenc e.

6Did TCEQ errin d enying S ierr a Club’s h earing re quest? Sierra Club argues that it was err or for T C E Q to deny its reque st for a contestedcase hear ing beca

use Sierra Club’s request complied with the rele vant statutory and regulatory require ments for a contested- case hear ing reque st and demons t ra t ed that at least one of its members has a justiciable interest aff ecte d by TCEQ’s proposed permit. See 30 Tex. Admin. Code § § 5 5.250–.256 (Requests for Contested Case Hea ring s). Such a fac ially confor ming re q u es t , 5 Sierra Club argues, is not subject to any deepe r inquiry , espec ially into any matters that might g o to the underly

ing merits of the license—e .g ., the likely eff ects of the proposed license permit on the
reque stor—beca

use those merits issues are proper ly the su b j ec t of a contested- case hear ing. Relatedly , Sierra Club argues that TCEQ was require d to hold a contested- case hear ing on any fac t issues raised by Sierra Club’s hear ing reque st—i.e., TCEQ does n ot have the authority to resolve fac tual disputes on its own. W e disag ree .
Cont ested-c ase hearing requests The Tex as R adiation Control Act (TRCA) g overns the development, use, storag e, proce ssing, and disposal of radioa ctive materia ls in Texas, incl uding the by -produc t materia l at issue in this case . See Tex. Hea lth & Safety Code §§ 401.001–.002 (TRCA’s policy and purposes);

s ee a l s o id. §§ 401.261–.272 (TRCA provisions specific to by -produc t materia ls). TRCA g ives TCEQ the sole authority over licenses “for storag e, proce ssing, or disposal of by -produc t materia l.” See id

. § 4 0 1 .2625. Under TRCA, TCEQ must hold a contested- case hear ing on the merits of an

All citations to T i t l e 30 of the Texas Administrative Code are to rules promulg ated by 5 TCEQ. 7application for a by -produc t disposal license if a “per son aff ecte d” reque sts such a hear ing. See id. § 401.264(a)

. A “per son aff ecte d” is “a person wh o d em o n s t rates that the person has suffe red or will suffe r actua l injury or economic damag e.” See id. § 401.003(15). Relatedly , TCEQ’s enabling statute, Chapter 5 of the Texas Water Code, prohibits TCEQ fr o m “gr ant[ing] a reque st for a contested c ase he aringunless the commission determines that the request wa s filed by an af fec ted person,” and direc ts TCEQ to adopt rules specify ing the fac tors that must be considere d in 6 deter mining aff

ecte d-per son status. See Tex. Water Code § 5.556; 30 Tex. Admin. Code § 55.256 (De termination of Affe cted Person). Thus, the critica l o r t h re s hold question in contested- case hear ing reque sts is whether the p er s o n re q u es ting the hear ing is an “affe cted person.” See Texas 7 Comm’n on Envtl. Quality v. City of W aco , 413 S.W .3d 409, 417 (Tex. 2013) (desc ribing question as “thre shold”).

An “af fec ted person” under the Water Code is “a person who has a persona l just i ciable 6 interest related to a leg al rig ht, duty , privileg e, power , or ec o n omic interest aff ecte d by the administrative hearing

. An i ntere st common to members of the gene ral publi c does not q u al i fy as a persona l justiciable interest.” Tex. Water Code § 5.115(a)

. Although this definition differ s from TRCA’s, they can (and should) be rea d toge ther to require hear ing reque stors to establish that they have standing in the matter: “a concr ete and particula rized injury in fac t, not common to the g ener al public, that is (1) actua l or imminent; (2) fairly trac eable to the issuance of the permit as proposed; and (3) likely

to be redressed by a favorable decision on its complaint.” Texas Comm’n on Envtl. Quality v. City of W

aco , 413 S.W .3d 409, 417 (Tex. 2013). TCEQ rules g overning contested- case hear ing reque sts a lso r equire that the reque st be in 7 writing , identify the persona l justiciable interest aff ecte d by the application, in c lu d in g th e r e q u estor’s location and distance rela tive to the proposed activity , and how and why t h e requestor will be af fe ct ed by the activity in a manner not common to members of the g ener al public. See 30 Tex. Admin. Code § 55.251(c) (2) (Request for Contested Case He a r in g , Pu b li c Comment). Fur

ther, when a g roup files a hear ing reque st, such as Sierra Club did here , the rules require that g roup to show that at least one of its members is an “af fec ted person,” the interests the org anization seeks to protec t are g erma ne to the org anization’s purpose, and the claim or relief reque st ed d o es not require the participa tion of the individual. See id. § 55.252 (Request by Group or A ssociation). 8Whether a reque st o r i s an “affe cted person” is principally controlled by the factors

cre ated by

TCEQ pursuant to statutory direc tive:
(a) For any application, an aff ecte d person is one who has a persona l justiciable interest related to a lega l rig ht, duty , privileg e, power, or econom i c int ere st aff ecte d by the application. An i ntere st common to members of the g ener al public does not qualify

as a pe rsonal justiciable intere st.

. . . (c) All rele vant fac tors shall be considere d, includi n g, b u t n ot limit ed to, the following : (1) whether the interest claimed is one protec ted by the law under which the application will be considered; (2) distance restric tions or other limit ations imposed by law o n t h e aff ecte d interest; (3) whether a rea sonable rela tionship exis ts betwee n the interest claimed and the a ctivity

regulated; (4) likely impact of the regulated activity on the health, safe ty , and use of proper ty of the pe rson; (5) likely impact of the regulated activity on use of the impacted natura l resour ce by

the per son; and (6) for g overnme ntal entities, their statutory authority over or interest in the issues rele vant to the application.

30 Tex. Admin. Code § 55.256. I f, upon considera tion of these fac tors at a Commi ssion meeting , 8 the TCE Q commissioners deter mine that the person seeking the contested- case hear ing is an aff ecte d
person and otherwise meets the regulat o ry require ments reg arding contested- case hear ings, the commissioners must g rant the he a r in g reque st and ref

er the application to SOAH for a contested- case

Upon re ceiving a hea

ring reque st, TCEQ’s ex ecutive director must schedule the hearing 8 reque st for consideration at a commission meeting and allow the executive direc tor, OPI C, and the permit applicant to file responses to the hearing reque st, and t h e h earing reque stor an opportunit y to reply

. See id . § 55.254(c) (2), ( e)–( f) ( Hea ring Request Proce ssing)

. 9hear ing. See id. § 55.255(a) (3) (Commissi on Action on Hea ring Request). Conversely , if the TCEQ commissioners deter

mine that the reque stor is not an af fected person or that the hear ing reque st does not otherwise meet the regulatory require ments, the commissioners may , as they did here , deny the hear ing reque st and act on the permit application without a contested-case hear ing, see id. § 55.255(a) (1), or they may schedule additional public hear in gs befor e acting on the application, see id. § 55.255(a) (2).

Stan dard of Revie w Although the TRCA waives sovere ign immunit y for judicial revie w of a TCE Q aff ecte d-per son deter

mination, see Tex. Hea lth & Saf e ty Co d e § 4 0 1

. 2 64(e) (making aff ecte d-per son deter mination in by -produc t licensing matters subject to judicial revie w), it does not provide

a standard of revie w for that deter mina t i o n. Cf. id. § 401.240 (manda ting “substantial evidenc e” revie w for TCEQ ac t i o n s in low-leve l radioa ctive waste licensing matters). Neve rtheless, in
two rec ent decisions involving simil a r is s u e s —i.e., TCEQ denials of contested- case hear ing reque sts in licensing matters wher e n o s t andar d of revie w was specifie d by the underly ing statute—the Tex as S u p re m e Court revie wed TCEQ’s decisions to deny the hear ing reque sts for an abuse of discretion. See City of W

aco , 413 S.W .3d at 411, 420, 424 (re fer ring to discretion TCEQ enjoy s in deter mining need for contested- case hear ing and holding that TCEQ did not abuse that discretion);

see also Texas Comm’n on Envtl. Quality v. Bosque River Coal. , 413 S.W .3d 403, 404 (Tex. 2013) (desc ribing its decision in City of W aco as concluding that TCEQ “did not abuse its d i s cr et i o n i n denying a contested case hear ing to an interested party , who claimed a rig ht to such a hear ing under

10the Texas Water Code”). TCEQ’s discretion in this matter arises g ener ally from TCEQ’s statutorily 9
g rante d exclusive jurisdiction over cer tain ty pes of permits for regulated activiti es

— h ere the exclus i v e j urisdiction to issue by -produc t disposal licenses, see Tex. Hea lth & Safety Code § 401.2625—and more specific ally from its authority to deter mine the need for a contested hear ing on the merits of a

ny license application under its jurisdiction. See id. § 401.264 (re quiring TCEQ
to deter mine need for contested-cas e h ea ring , including affe cted- person status); Tex. Water C ode § 5.115(a) (direc ting TCEQ to adopt fac tors it must consider in deter mining aff

ecte d-per son status);

see also Tex. Water Code § 5.556 (allowing rec onsideration o f d ec ision to hold a contested- case hear ing and specify

ing that TCEQ mus t d e te r

mine aff ecte d-per son status); City of W aco , 413 S.W .3d
at 420 (noting “the discretion the statute confe rs on [TC EQ] in deter mining the need for a [contestedcase ] hearing ”).

The L eg islature has g rante d this disc re t i o n to TCEQ in part beca use of TCEQ’s expected ex pertise in the s ubject m at t er o f t h e licenses under i ts jurisdiction. See Gerst v. N ixon , 411 S.W .2d 350, 360 n.8 (Tex. 1966). But that expe ct ed ex p er tise has value only if it is used as

Although Bosque and City of W aco wer e ultimately decide d under statutory hear ing 9 exceptions that are not a

pplicable to by -produc t licensing case s, see Tex. W ater Code § 26.028(d) (re g arding water -quality permits), they never theless inform o u r d ecision here

. City of W aco discusses with approva l a prior opinion from this Court addre ssing a standard of revie w for TCEQ’s dispositi on of a contested- case hear ing reque st. See City of W aco , 413 S.W .3 d at 423–24 (citing Colli ns v. Texas Na t u r a l Res. Conservation Comm’n , 94 S.W .3d 876 (Tex. App.—Austin 2002, no pet.)). Fur

ther, the contested- case hear ing framework analy zed in the City of W

aco and Bosque is the framework applicable to all hear ing reque sts under TCEQ’s jurisdiction, i n cl uding provisions from Chapter 5 of the Water Code and TCEQ regulations in C h ap t er 55 of Title 30 of the Texas Administrative Code. See Texas Comm’n on Envtl

. Qu a l i t y v. Bosque River Coal ., 413 S.W .3d 403, 406–09 (Tex. 2013); City of W aco , 413 S.W .3 d at 4 1 6

– 2 5

. As such, and g iven the lack of supreme court jurisprudenc e i n t his are a, these two rec ent opinions firmly g uide our dispositi on of this appea l.

11the L eg islature has direc ted. Id. Thus, an ag ency abuses its discretion in making a decision if it

“(1) fails to consider a fac tor the L eg islature direc ts it to consider; (2) considers an irrele vant fac tor;

or (3) weig hs only rele vant fac tors t h at t h e L egi s lature direc ts it to consider but still rea ches a completely unre asonable result.” City of El Paso v. Public Util. Comm’n , 883 S.W .2d 179, 184 (Tex. 1994) (citing Gerst , 411 S.W .2d at 360 n.8); see also Downer v. Aquamarine Operators, Inc. , 701 S.W .2d 238, 241–42 (Tex. 1985) (the test for an abuse of discretion is whether “the trial court
acte d without ref

ere nce to any g uiding rul es and principles” or “whe ther the act was arbitra ry

or unre asonable ”).

TCEQ’s discretion over contested- case hear ing reque sts natura lly includes its “thre shold” deter

mination of whether the person seeking t h e h ea ri ng is an aff ecte d person. See City of W aco , 413 S.W .3d at 410, 417. And i n m ak i n g t hat particular decision, TCEQ enjoy s the discretion t o we igh and resolve matters that may g o to the merits of the underly ing application, i n cludi ng the likely impact the reg ulated activity

—here , underground disposal of by -produc t materia l—will have on the health, safe ty , and use of proper ty by the hear ing reque stor and on the use of natura l resource s . S

ee 3 0 Tex. Admin. Code § 55.256(c) ; City of W aco , 413 S.W .3d at 420 (noting overla

p betwee n aff

ecte d-per son fac tors and exemption found to be dispositi ve in that case ). TCEQ’s inquiry into these and the oth er fa ct o rs may include ref ere nce to the permit application, attache d expert repor

ts, the analy sis and opinions of profe ssionals on its staff, and any repor ts, opinions, and data it has befor e it. See City of W aco , 4 1 3 S .W.3d at 420–21 (desc ribing these evidentiar y i tems as rele vant to inquiry and holding that there was evidenc e in rec ord to support TCEQ’s deter

mination). And importantly , the exis tence of substantial evidenc e in the rec ord supporting TCEQ’s decision is a fac tor—often a dispositi ve fac tor

— i n d et ermining whether 12TCEQ abused its discretion. See id. at 424–25; see also Quixtar Inc. v. Signature Mgmt. Team, LLC ,

315 S.W .3d 28, 35 (Tex. 2010) (per curiam) (h o lding that trial court’s forum-non- convenie ns dismiss al “wa s not an abuse of discretion in light of the evidenc e befor e it”); Texas Health Facilities Comm’n v. Charter Med.- Dallas, I nc., 665 S.W .2d 446, 454 (Tex. 1984) (noting that “the exis tence of substantial evidenc e has been equate d with fair and rea sonable conduct on the part of the ag ency ,” while “ag ency decisions that are unsupported by substantial evidenc e have b ee n deeme d arbitra ry and capr icious”); cf

. Tex. Heal t h & S af

ety Code § 401.240 (making aff ecte d-per son deter mination subject to “substantial evidenc e” revie w). This is so reg ardle ss of whether TCEQ held

an evidentiar

y hear ing, as long as the hear ing reque stor was aff orded its regulatory rig hts to express his dissatisfaction with the proposed license and the ag ency did not ref use to consider the evidenc e offe red in support of that dissatisfaction. See Bosque River , 4 1 3 S

. W

. 3 d at 408 (noting , in its d et ermini ng of whether TCEQ abused discretion in denying hear ing reque st, that there wa s “n o in d i ca tion that [TC EQ] ref used to consider any evidenc e tender ed to substantiate the[] asser ted defic iencies” in reque sted permit); City of W aco , 413 S.W .3d at 423–24 (re versing contra ry holding in the underlying opinion while citing with approva l Colli ns v. Texas Natural Res. Conservation Comm’n , 94 S.W .3d 876, 884–85 (Tex. App.—Austin 2002, no pet.), that ag ency ’s denial of hear ing
reque st was supported by substantial evidenc e reg ardle ss of fac t that evidentiar y hear ing not held).
TCEQ’s evaluation of Si erra Club’s h earing request Our revie w of the rec ord indicates that TCEQ was within its discretion to deter mine that Sierra Club’s members wer e n o t af fec ted persons. The rec ord indicates that, upon rec eipt of S i er ra C lub’s hear ing reque st, the Ex ecutive Direc tor set the matter for consideration at a

13TCEQ m ee t i n g, al l o wed response s, and allowed Sierra Club to file a reply to those response s. I n

considering the reque st, TCEQ had befor e it, among other items, the Ex ecutive Direc tor’s response , the application, and an environmenta l analy sis conducte d by TCEQ staff an d t h e Bur eau of
E co n o mic Geolog y at The University of Texas at Austin. Among many other things, th er e wa s evidenc e in the re cord that:

• Gar dner and Wil liams live more than three miles from the proposed fac ility and neither “wor k or spend a

ny substantial time in or around the [proposed] fac ility ”;

• the proposed license complies with Texas statutes and rules reg arding migr ation of radioa ctive mater ials from floods, hig h winds, railway acc idents, and traf

fic a ccide nts;

• the application provides all require d information on the char acte rization of the g eolog y and hy drolog y of the proposed site to show that the proposed activities would not aff ect the ar ea g roundwater;

• Gar dner’ s and Wil liams’s conce rns about gen er al contamination in Eunice and traff ic acc idents are interests common to the member s of the g ener al public;

• computer mode ling done by WC S and by

TCEQ staff in r eviewing WC S’s a pplication “sug g est[s] that there will be no detrim ental radiolog ical impact to a potential off- site resi d en t at the proper

ty boundary

—even less so for those residing in Eunice, New Mexi co”;

• beca

use TCEQ is not authorized to r eg ulate or control traff ic and the draf

t lice nse does not authorize rec eipt of materia ls by rail , co n ce rns about traff ic or railwa

y acc idents could not be addr essed in a c ontested-c ase he aring ;

• a contested- case hear ing could not addre ss conce rns reg ardi n g n e g a ti v e publicity beca

use the activity is regulated to ensure the protec tion of the environment and health and safe ty , not manag e publicity ;

• Gar dner and Wil liams live west of the proposed fac ility , and the g roundwa ter flow is to the south/southwest;

• i ndepende nt modeling by both WC S and TCEQ indicates that “the proposed faci l i t y would contain and i s o l ate by -produc t wastes for at least 200 y ear s under conser vative assumptions”; 14• preva iling wi nds in the are a are southerly and shifting from the north in winter, while Gar dner a nd Wil liams live to the west of the propose d fac ility ;

• modeling indicates “no detrimental impact to a potential off- site resident at the proper ty boundary”;

• the draf

t permit “prohibits disposal of bulk non-conta inerized by -p ro du ct materia l to addre ss, in part, the conc erns a bout assessment of wor st-case wind conditions”;

• the application inclu d es appropriate char acte rizations of meteorolog ical and climate conditions at the proposed site;

• the proposed desig n includes “a run-on control berm to dir ec t wa t er awa y from the operating disposal fac ility , final g rading afte r closure to direc t run-of f awa y from t h e closed fa cility , and dra inag e contr ols within t he disposal fa cility ”;

• the draf

t license addre sses weather events at the site to be protec tive of human health and the environme nt; and

• the main s urfa ce water draina g e in t he ar ea is a “southwar d draining epheme ral stre am about three miles w est of the proposed fac ility and is situated betwee n the fac ility ” and Eunice.

T h e ab o v e information supports a conclusion that WC S’s application for a by

product disposal license met the statutory require ments for such a fac ility and, more importantly , that the actua l operation of the fac ility as licensed is not likely to adver sely contaminate the
g roundwater, surface water , air, or soi l s i n t h e re gion with radioa ctive material, at l east not in
amounts that are prohibited under the law. For that rea son, it would have been rea sonable, and thus within TCEQ’s discretion, to conclude that Gar dner and Wil liams are not aff ecte d persons beca use the licensed activity will have minimal eff ect on their health, safe ty , use o f proper ty , and use of natura l resour ces. See 30 Tex. Admin. Code § 55.256(c) (4)–( 5). L ikewise, it would have been rea sonable for TCEQ to deter mine that Gar dner’ s and Wil li am s’s stated conce rns

over possible tr aff

ic and railwa

y acc idents involving by -produc t materia ls wer e not rea sonably

15related to the disposal of by product at the WC S site beca use TCEQ has no jurisdiction over the transporta tion of radioactive materials and beca use t he permit does not allow W CS t o re ce ive by -produc t materia l by rail. See id. § 55.256(c) (3). Relatedly , it woul d h av e b ee n rea sonable for TCEQ to deter

mine that Gar dner is not an aff ecte d person gi v en that her conce rn

re gar ding the eff

ects of possible neg ative publicity on her business is not rea sonably related
to the WC S fac ility beca use the rele vant regu l at i o n s i n v olve public health, safe ty , and the environment—not publicity

. See id. Finally we would note, as did the Ex ecutive Direc tor, that Gar dner’ s and Wil liams’s conce rns about the licensed activity are share d by the g ener al public. See id. I n sum, we cannot say that TCEQ abused its discretion in deciding that neither Gar dner

nor Wil liams is a person wh o wo u ld be aff ecte d by the proposed permit under the rele vant fac tors. Acc ording ly , it was within TCEQ’s discretion to deny the hear ing reque st, see Tex. Hea lth & Safety Code § 401.264 (re quiring TCEQ to hold contested- case hear ing reg arding by -produc t license if reque sted by person aff ecte d), and in f

act, it would have been an abuse of TCEQ’s discretion to g rant the hear ing reque st upon such a deter mination, see Tex. Water Code § 5.115 (“The commission may not g rant a reque st for a conte s t ed case hear ing unless the commission deter

mines that the reque st was filed by an aff ec t ed person . . . .”). We overr ule Sierra Club’s fir st issue on appea l. 1 0

Although Sierra Club’s stated issue on appea l is whether it was entitled to a contested- 1 0 case hear ing simply beca use it submitt ed a hear ing reque s t t h at m et t he applicable statutes and regulations, our discussion above of City of W aco and Bosque makes it clea r this cannot be the end of our analy sis. Acc ording ly and beca use this case was submitt ed befor e the supreme court issued these decisions, we have addre ssed this as an appea l challeng ing the ov er al l p ropriety of TCEQ’s denia l. 16Sierra Club’s “new evid ence” I n its second issue, Sier

r a Cl u b c h a ll e n g es the district court’s denial of its “Motion for Remand to Consider Materia l New Evidence .” The new evidenc e offe red by Sierra Club in this motion consisted of two internal TCEQ memos written in 2007 by TCEQ staff members. 1 1 Sierra Club contends that these two memos reve al that the author of eac h m em o opposed issuance of the by -produc t disposal license to WC S beca use the author felt that WC S had failed to comply with regulatory require ments. Sierra Club argues that this ty pe of information is materia l to the WC S license application an d , as s u ch, should have fac tored into TCEQ’s evaluation of its hear ing reque st; thus, Sierra Club maintains, the district court should have
g rante d its request to rema nd the matter to TCEQ. We disag ree . Sierra Club based its motion for rem an d

— and its challeng e on appea l—on section 2 0 0 1 .175(c) of the Administrative Procedur e Act (APA), which allows the revie wing
court t o remand to the underlying ag ency for evalua tion of new evidenc e under cer tain circ umstances:

A party may apply to the court to prese nt additional evidenc e. I f the court is satisfied that the additional evidenc e is materia l and that there wer e g ood rea sons for the failure to prese nt it in the proce eding befor e the s t at e ag ency , the court may order that the additional evidenc e be taken befor e the ag ency on conditions deter mined by t h e co u rt. The ag ency may chang e its finding s and decision by rea son of the additional evidenc e and shall file the additional evide nce a nd any chang es, newfinding s, or dec isions with t he re viewing court.

Sierra Club’s motion to the district court urg ed consideration of additional new evidenc e, 1 1 but it li mits i ts appea l to the two memos addresse d here

. 17Tex. Gov’t Code § 2001.175(c)

. But even if we assume without deciding that these two memos

are materia l and that Sierra Club had g ood rea sons for its failur e t o p re s en t the evidenc e to TCEQ, see id. , sectio n 2 001.175 simply does not apply to the circ umstance prese nted here

. Section 2001.175 is in Subchapter G of the APA, which is titled, “Contested Cases: J udicial Review,” see id. §§ 2001.171–.178. By its own terms, Subchapter G applies only to judicial revie w from contested- case hear ings: “A person who has exhausted all administrative reme dies available within a state ag ency and who is ag g rieve d by a final decision in a contested case i s en titled to judicial revie w under this chapte r.” Id. § 2001.171 (empha sis added)

. T C E Q’ s evaluation of Sierra Club’s hear ing reque st and its decision to deny that hear i n g re q u es t is
not a conteste d-ca se hea

ring subject to the APA. See 30 Tex. Admin. Code § 55.255(a) (“The deter mination of the validity of a hear ing reque st is not, in itself, a contested case subject to the APA.”); City of W

aco , 413 S.W .3d at 417. Acc ording ly , it was not err or for the district court to ref use to rema

nd the ca se under

APA section 2001.175(c ). Even if sectio n 2001.175 applied here , howeve r, we would not ag ree that the proff ere d evidenc e is materia l to TCEQ’s decision on the hear ing reque st. See Tex. Gov’t Code § 2001.175(c) (re quiring revie wing court be satisfied that new evidenc e is materia l). Additional evidenc e is materia l under this provision if, among other considerations, its prese ntation to the
ag ency could have cause d the ag ency to rea ch a contra ry conclusion. See Texas Oil & Gas Corp.

v. Railroad Comm’n , 575 S.W .2d 348, 352 (Tex. Civ. App.—Austin 1978, no writ). As noted by Sierra Club in its a

ppellate brief here and in its motion for partial summary judgme nt to the district c ourt, the TCEQ commissioners wer e aw are of dissent from some TCEQ staf f: one of the TC EQ commi ssioners ex presse d conce rn in the TCEQ mee ting that a g ency staff members 18h ad raised questions in the media about WC S’s application and about whether TCEQ was

suppressing full revie w of the ap p l i ca t i o n . Stated another way , even without the memos in front of them, the TCEQ commissioners wer e awa re th at s o m e TCEQ staff disag ree d with the Ex ecutive Direc tor’s rec ommendation to issue the license. Acc ording ly , we cannot say that having these two staff memos in evidenc e would have cause d the ag ency to rea ch a contra ry conclusion. Finally , we also note that Sierra Club’s motion offe rs no explana t i o n fo r why it failed to pre sent the evide nce to TCEQ. See Tex. Gov’t Code § 2001.175(c) (re quiring “g ood

rea sons f or the failure to present” evidenc e to a g ency ). I nstead, Sierra Club simply asser ted to the district court that it had “bec ome awa re of new, materia l evidenc e” since the district court’s judgme nt. On that basis alone, and ag ain assuming that section 2001.175 would even apply here , the district court c ould have de nied Sierra Club’s moti on. We overrule Sierra Club’s sec ond issue on appea l.

CONCLUSION Having overr

uled bot h of S ierra Club’s is s u es o n appea l, we affirm the district court’s judg ment.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J eff Rose, J ustice Be fore J ustices Pury ear , Rose, and Goodwin Affir med Filed: Apr il 4, 2014

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