### 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

ON MOTION F OR REHEARING

NO. 03-14-00667- CV

Texas Com m ission on En vironm ental Quali ty, Appellant

v. Exxon Mobi l Corporation; ExxonMobil O il Corporation; P ennzoil-Quak er Stat e Com pany; an d Sh ell Oil Com pany, Ap pellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 345 TH JUDICI AL DISTRICT NO. D-1 -GN-1 0-0 0077 2, H ONO RAB LE AMY CLARK MEACH UM, J UDGE P RESIDING

O P I N I O N

We withdraw the opinion and judgme nt dated April 8, 2016, and su b stitut e the following opinion and judgme nt in their place . We deny appellants’ motion for r ehea ring

. I n this case of first impression, the Tex as C ommissi on on Environmental Quality contends that the two ty

pes of Superfund order s it i s empowered to issue are mutually exclusive, meaning that one order cannot be issued under both or dering provisions. The Commi ssion further contends that the Superfund order at issue here is an order issued under Section 361.188 of the Solid Waste Disposal Act and that the order there fore is g overne d by the substantial-evidenc e standard of revie w found in Section 361.321. See generally Tex. Hea lth & Safety Code §§ 361.001-.966 (“Solid Waste Disposal Act” or “Ac t”). The pending case aros e af t er t h e Commi ssion issued anadministrative order rela ted to clea nup of the Voda Petroleum State Superfund Site (“V oda Orde r”)

. The Commi ssion appea ls from a trial court’s order deny ing its plea to the jurisdiction in a suit filed by ap p el l ees Ex x on Mobil Corporation, Ex x onMobil Oil Corporation, Pennzoil -Qua ker State Company , and Shell Oil Company (collec tively , “Exx onMobil and Shell”) challeng ing t h e Voda Orde r. On appea l, the Commi ssion asser ts that beca

use the supreme court in City of W aco conducte d

a substantial-evidenc e revie w in the absenc e of a contested- case or adjudicative hear ing, this Court should reve rse the trial court’s order deny ing the Commi ssion’s plea to the jurisdiction and rema nd the case with a fi n d i n g that the courts should revie w the Voda Orde r only under the substant i al -e v i dence standard provided in Section 361.321 of the Act, not the
p reponde ranc e-of

-evide nce standard provided in Section 361.322. See Texas Comm’n on Envt ’l 1 Quality v. City of W

aco , 413 S.W .3d 409 (Tex. 2013). Specifica lly , in three issues, the Commi ssion

co n t en d s that (1) the Act establishes two separ ate ty pes of Superfund order s found in Section s 3 6 1

. 188 and 361.272 with distinct waiver s of immunit y found in Sections 361.321 and Section

Section 361.321 allows “[a] person aff ecte d by a ruling , order , decision, or other act of the 1

. . . commission” to appea l the action and es t ab l i s h es that “[e]x cept as provided by Section 361.322[g], in an appeal from an action of t h e co m m i s s i o n . . . , the i ssue i s whether the action is i n va l i d , a rbitrary, or unreasonable .” Tex. Hea lth & Safety Code § 361.321(a) , (e) (empha sis added)

. As a preliminary matter, the parties acknow ledg e that due to a draf ting omission when Subchapter F was amende d, the ref ere nce in Section 361.321(e) to “Section 361.322(e) ” should rea d “Section 361.32 2 (g) .” I n addition, the parties ag ree that Section 361.321’s “invalid, arbitra ry , or unrea sonable” standard means the scope of revie w set forth in Administrative Procedur e Act Section 2001.174 (commonly termed “substantial-e vidence ” revie w) and is a revie w limit ed to the administrative rec ord. See Smith v. Houston Chem. S er vs. , 872 S.W .2d 252, 257 n.2 (Tex. App.—Austin 1994, writ denied) (construing subsection (e) as incorporating entire scope of revie w allowed by Texas G overnme nt Code Sections 2001.171-.174, including all subsections of Section 2001.174(2)( A)-( F) ); see also Tex. Gov’t Code § 2001.174 (establishing s cope of revie w in contested case when law authorizes rev i ew u n der substantial-evidenc e rule or when law does not define scope of

judicial revie w). 2361.322, respe ctively ; (2) the Commi ssion issued the Voda Orde r only under Section 361.188 and

there fore it is revie wable only under Section 361.321; and (3) courts lack subject-matter jurisdiction
to revie w the Voda Orde r under any section other than Section 361.321. Be cause we conclude that Section 361.322 applies to administrative order s issued by the Commi ssion under Section 361.188, we will af

firm.

STATUT ORY F RAMEWORK A brief overvie w of Superfund leg islation will g ive context to our analy sis of the two ty pes of administrative orders at i ssue. The S o l i d Waste Disposal Act “is our st ate counterpa rt to
two fede ral environmenta l statutes: the Resource Conservation and Re co v er y Act (‘RCRA’), 42 U.S.C. §§ 6901–6992, and the C o m prehe nsive Environmental Response, Compensation, and L iabili t y Ac t (‘ CERCL A’), 42 U.S.C. §§ 9601–9675.” R.R. Street & Co. v. Pilgrim Enters. , 166 S.W .3d 232, 238 (Tex. 2005). RCR A primarily reg ulates “on-g oing trea tment, storag e, and disposal of solid and hazardous wastes.” B.F. Goodrich Co. v. Murtha , 958 F. 2 d 1 1 9 2, 1201 (2d Cir.1992). CERCL A, on the other hand, is a reme dial statute whose p u rpose is to fac ilitate a prompt response to a rele ase or substantial threa t of a rele ase of h az ardous substances into the environment, to provide broad authority for the clea nup of hazardous-substanc e sites, and to ensure that those responsible for the hazardous substa n ce s b ea r the cost of their actions. United States

v. Alcan Aluminum Corp. , 964 F.2d 252, 258 (3d Cir.1992). Specifica lly , it allows the g overnme nt
to clea n up contaminated s i t es using the Hazardous Substance Superfund, a trust fund, see 42 U.S.C. § 9601(11), and then rec over costs from those parties who benef itted from the wastes that

cause d the harm, see OH M R eme diation Servs. v. Evans Cooperage Co. , 116 F.3d 1574, 1578

3(5th Cir. 1997). CERCL A cre ates a broad liability scheme that “extends liability all the way down

the causa l chain, from those who g ener ate waste throug h those who dispose of it” and imposes strict liability that is joint and seve ral whe n the har m is indi visible. Id. at 1578-79. The Texas L eg islature enac ted the Solid Waste Disposa l Act “to safe g uard the health, welfa re, and phy sical proper

ty of the p eo p l e an d to protec t the environment by controlling the
manag ement of solid wa s t e, including acc ounting for hazardous waste that is g ener ated.” Tex. Hea lth & Safety Code § 361.002(a) ; see also R.R. Street , 166 S.W .3d at 238. The Act orig inally only
reg ulated the collection, handling , storag e, and disposal of solid wastes throug h a permit ting
prog ram. Solid Waste Disposal Act, 61st L eg ., R.S., ch. 405, 1969 Tex. Gen. L aws 1320 (“or igina l Act”) , repeale d and recodified by Act of May 18, 1989, 7 1 s t L eg ., R.S., ch. 678, 1989 Tex. Gen. L aws 2230, 2612-64. The o ri g inal Act authorized the responsible ag encie s to issue permits
g overning the opera

tion of and maintenanc e of solid-waste disposal sites and to establish minimum

s tandar ds for the manag ement and control of solid waste. Orig inal Act at 1322-23. Whil e th e orig inal Act imposed civil penalties for entities that violated its provisions and allowed any “per son af fe ct ed b y any ruling , order , decision, or other act of the depar tment or the board” to “appe al b y filing a petition in the district court of Travis County ,” see orig inal Act at 1326-28, it did not authorize the issuance of administrative order s lik e t h e Vo d a Or der. The orig inal Act did not
empower the State to clea n up co n t am i n at ed sites or to order the persons responsible for the contamination to pay

the cost of a

clea nup. After CERCL A’s enactment, the L eg islature amended the Act to cre ate the State’s own S uperf

und prog ram withi n the ex isting sol id-waste permitting statute. Act of May 27, 1985,

469th L eg ., R.S., ch. 566, 1985 Tex. Ge n . L aw s 2 1 6 6 -83, repeale d and recodified by Act of

May 18, 1989, 71st L eg ., R.S., ch. 678, 1989 Tex. Gen. L aws 2230, 2612-64. The curr ent Act allows the State to issu e t wo d i fferent ty pes of administrative order s, g iving it a broade r rea ch than CERCL A. One ty

pe of administrative order conce rns hazardous s u b s t an ces only (“188 order ”), while the other applies to solid waste, a cate g ory that includes but is not limit ed t o h az ar d o u s substances (“272 order ”). Tex. Hea lth & Safety Code §§ 361.188, .272; see also id. § 361.003(11) (def ining “hazar dous substances” ), (12) (def ining “hazar dous w aste” ), (34) (def ining “solid waste” ). L ike C ERCL A, bot h ty

pes of order s impose strict liability that is joint and several when t he harm is indivisi ble. See id. §§ 361.187(f) (potentially responsible party ’s ultimate liability for reme diation deter mined under Subchapter I ), .276 (Subchapte r I provision establishing that liability is joint and

sever al if re lease or threa

tened r elea se is not proved to be divisible). Specifica lly , a 188 order conce rns the rele ase or threa tened rele ase of h az ar d o u s substances at a hazardous-w aste fac ility that prese nts an imminent and substantial endang erme nt to public health an d s af

et y or the environment and should be listed on the state Superfund reg istry

. 2 Id. § 361.188(a) (1). Under this ty pe of order , which is issued afte r an investiga tion/feasibility study and a public meeting to discuss a proposed reme dial action, the State may order persons responsible

Although Subchapter F is titled “Reg istry and Cleanup o f C er t ain Hazardous W aste 2 Fa cilities,” the term “faci l i t y ” i n Subchapter F is define d as “any building, structure , installation, equipment, pi pe, or pipeline (including any pipe i nto a sewer or publicly owned tre at m en t wo rk s, well, pit, pond, lag oon, impoundment, ditch, landfill, storag e container , motor vehicle, rolling stock, or airc raf t), or any site or are a wher e a hazardous substance has been deposited, stored, disposed of, or place d or otherwise com e to be located. The term does not include any consumer product in consumer use or any

vessel.” T ex. Health & Saf ety Code § 361.181(c) (1) ( emphasis adde d). Our ref ere nces in this opinion to “hazar dous-waste fac iliti es” in conne ct i on with our discussion of Subchapter

F mea n “fa cilities” as the ter

m “fa cility ” is define d in Section 361.181. 5for the rele ase or threa tened rele ase to reme diate the fac ility acc ording to a schedule established by

the Commi ssion. Id. § 361.188(a) (3), (4), (6), (7). Under a 272 order , the Commi ssion may restra in
persons responsible for solid waste from allowing or continuing the rele ase or threa tened rele ase of solid waste that pre sents an imminent and substantial endang erme nt to public health and safe ty or the environment and may require those persons to implement a reme d i al ac tion plan desig ned to eliminate the rele ase or threa tened rele ase (“272 order ”). Id. § 361.272(a) -(b)

. We will examine in

more detail below the interac tion of the two S u b ch ap t er s of the Act containing these two order ing pr ovisions.

F ACTUAL AND P ROCEDURAL BACK GR OUND

The Voda Site is on approximately six acr es loca ted i n Gre g g County , Texas. The Site was used by Voda Petroleum, I nc. as an oil-blending and oil-rec y cling fac ility from about 1981
to 1991, when opera tion s ce as ed an d the Voda Site was abandone d. I n the mid-1990s, both the Environmental Protection Ag en c y a n d the prede cessor ag ency to the Commi ssion (the Texas Natura l Resource s Conservation Commi ssion) investiga ted the Site to deter mine whether Voda Petroleum’s
opera tions had resulted in the rele ase of hazardous substances. The EPA conducte d a remova l action in 1996, althoug h the Site’s ran k ing was too low to qualify the Site for the fede ral Superfund
prog ram. After the remova l action, the EPA soug ht rec overy of its costs and eventua lly enter ed into administrat i v e order s of consent with companies it had named as potentially responsible parties; those order s established how much those parties owed the EPA. I n 1999, the EPA ref err ed the Voda Site to the St ate of

Texas for any

further reme dial action re quired unde r state a uthority

.

6I n November 2000, the C ommissi on’s predece ssor ag ency proposed the Voda Si te

for listi ng on the state Superfund reg istry and notified parties that it believed had shipped materia ls
to the Voda Site that they wer e potentially responsible for investiga tion and reme diation of the Site, including providing them with notice that they could make a g ood-fa ith offe r to conduct a reme dial investiga tion and fea sibili ty study

. Severa l parties submitt ed written comments and o b j ec t ions, complaining that no em p i rica l data supported finding imminent and substantial endang erme nt or listi ng the Voda Site on the state Superfund reg istry

. No g ood-fa ith o ff er t o co n d uct the investiga tion was rec eived, so the Commi ssion conducte d the reme dial investiga tion and fea sibili ty study and propose d a re medial ac tion. After public notice and c omment sug g esting alterna tive reme dies, the Commi ssion studied other alterna tives. I t a lso pr ovided the potentially responsible parties with the opportunity to f und or conduct the reme dial action, but no g ood-fa ith offer to do so was rec eived and acc epted by the Commi ssion, so no ag ree d order was issued. At a public meeting , the Commi ssion considere d what it descr ibed on the meeting ag enda as “a Final Administrative Orde r (F inal Orde r) pursuant to Texas Hea lth and Safety Code Sections 361.188 and 361.272 fo r t h e Voda Petroleum, I nc. State Superfund Site.” Although some potentially responsible parties wer e all owed to addre ss the Commi ssioners, they wer e not al l o wed to prese nt evidenc e to the Commi ssion and they wer e informed that “the law g overning this case does not provide for an adjudicator y hear ing at this time.” The Act contemplates that Superfund order s may be issued without holding any adjudicative hear ing both in Subchapter F, which outlines the proce ss for issuing an administrative order under Section 361.188, see id. §§ 361.184 (e), .187(c) , and in Section 361.274, which expli citly states that “[a]n

7administrative order under Section 361.272 does not require prior notice or an adjudicative hear ing

befor e the c ommissi on,” id. § 361.274.

On Fe bruar

y 12, 2010, the Commiss ion issued a unilatera l administrative order for
t h e Voda Site “to require persons responsible for such solid wastes or hazardous subs t an ce s t o perf orm the Work, including conducting the Remedial Activities, as authorized by Sections 361.188 and 361.272 of the Act.” (Emphasis added) ; see id. §§ 361.188 (establishing contents o f fi n al administrat i v e o rd er to be issued by Commi ssion afte r considera tion of all g ood-fa ith offe rs to perf orm reme dial action at hazardous-w aste fac ility determ i n ed to pose imminent and substantial endang erme nt to public health and safe ty or to environment), .272 (providing that Commi ssion may issue administrative order to person responsible for solid waste if it appea rs there is actua l or threat en ed rele ase of solid waste that prese nts imminent and substantial endang erme nt to public health and safe ty or to environment). The Voda Orde r named Ex x onMobil and Shell as potentially responsibl e parties, along with approximately 350 other entities, and order ed them to pay th e Commi ssion’s response c osts for clea nup of the Voda

Site. Ex x onMobil and Shell filed suit appea ling the Voda Orde r in Travis County District Court, challeng ing the Commi ssion’s actions under the Act and seeking decla ratory relief under the T ex as Un i fo rm Dec lara

tory J udg ments Act, see Tex. Civ. Prac. & Rem. Code § 37.001. The Commi ssion filed a counter -petition and third-par ty petit i on seeking cost rec overy ag ainst Ex x onMobil and Shell an d other potentially responsible parties, see Tex. Hea lth & Safety Code § 361.197(d) (re quiring Commi ssion to file cost-re cover y action ag ainst eac h responsible party for total costs of reme dial actions taken by Commi ssion using funds from Hazardous and Solid Waste

8Remediation Fe e Acc ount established in Section 361.133); enfor ceme nt of the order under Sections

361.321 and 361.322(g ), see id. §§ 361.321(e) (except as provided by Section 361.322, “in an appea l from an action of the commission

. . . , the issue is whether the action is invalid, arbitra ry , or

unrea sonable” ), 361.322(g ) (in appea l of administrative order , Co m m i s sion must prove by preponde ranc e of evidenc e that “(1) ther e i s an actua l or threa tened rele ase of solid waste or h az ardous substances that is an imminent and substantial endang erme nt to the public heal t h an d safe ty or the environment; and ( 2) the pe rson made subje ct to the administrative order is liable for the elimination of the rele ase or threa tened rele ase, in wh o l e or in part” ); injunctive relief ,

see id. § 361.273(2); and its attorney s’ fee s and costs, see id. § 361.341; Tex. Water Code § 7.108; Tex. Gov’t Code § 402.006(c)

.

The partie s p ro ce eded to conduct discovery for the next few y ear s. Then, approximately four y ear s afte r the case was filed, the Commi ssion f iled its plea to the jurisdiction. I n its plea and reply , it asser ted that (1) a Superfund order can be issued under either Section 361.188

or Section 361.272, but not both; (2) the Voda Or der was issued only under Section 361.188, not Sectio n 361.272; (3) an order issued under Section 361.188 may only be revie wed under Section 361.321, which provides for revie w under the substantial-evidenc e standard; and (4) there fore , the trial court lacke d subject-matter jurisdiction to revie w the Voda Orde r under any standard other than the one found in Section 361. 321 beca use the L eg islature has not g rante d any other waiver of

sovere ign immunity

for 188 or ders. Acc ording ly , the Commi ssion a sserted, judicial revie w under
any other standard would violate the separ ation-of- power s d o ct ri ne. Ex x onMobil and Shell responde d that (1) nothing in the Act supports a conclusion that an administrative ord er may be

9issued only under Section 361.188 or Section 361.272, but not both; (2) the Voda Orde r was issued

under both Sections; (3) b ec au s e t h e Voda Orde r was issued under both Sections, it should be revie wed under the preponde ranc e-of -evide nce standard p r o v ide d for in Section 361.322; and (4) the
separ ation-of- power s doctrine does not bar judicial revie w under Section 361.322 beca use the order is not a quasi-leg islative act and thus the L eg islature is not prohibited from authorizing its judicial revie w via trial de novo. I n addition, Ex x onMobil and Shell contende d that the Commi ssion’s plea did not impl icate the trial court’ s subject-matter jurisdiction because the Commiss ion sought only

a decision on what standard of revie w the trial court should use and did not challeng e the waiver of

sovere ign immunit y fou n d in the appellate provisions of the Act. The trial court denied the Commi ssion’s plea to the jurisdiction. This appea l followed.

ANALYSIS I n three issues on appea l, the Commi ssion asser ts that (1) the Act allows two differ ent ty pes of Superfund order s, 188 order s and 272 order s, which are separ ate an d d i s tinct and have individual waiver s of immunit y and differen t s t andards of revie w under Section 361.321 and Section 361.322, respe ctively , and a single order cannot arise under both se ctions; ( 2) it issued the Voda Orde r only under Section 361.188 of th e Ac t and there fore it may only be revie wed under Section 361.321’s substantial-evide nce sta ndard; a nd (3) c ourts lack subjec t-matter jurisdiction to

re v i ew the Voda Orde r under any section other than Section 361.321 beca use of the doctrin e o f

sovere ign immunit y . We turn first to the question of whether the Act makes the two ty pes of order s mutually exclusive and whether the two ty pes of order s are subject to differ ent standards of revie w.

10Construction of the Act ’s provision s for registr y and cleanup of Sup erfund sites and f or enforce m ent of administrative or ders We revie w issues of statutory construction de novo. Texas Lottery Comm’n v. First State Bank of

DeQue en , 325 S.W .3d 628, 635 (Tex. 2010). Our primary objective when construing statutes is to g ive effec t to the L eg islature’s intent, which we see k first and for emost in the tex t of the statute. First Am. Titl e Ins. Co. v. Combs , 258 S.W .3d 627, 631-32 (Tex. 2008). The plain meaning of the text is the best expression of leg islative intent, unless a differ ent meaning is appar ent from the context or application of t h e p l ai n l ang uag e would lead to absurd results. Molinet

v. Kimbrell , 356 S.W .3d 407, 411 (Tex. 2011). When a s t at u t e’ s words are unambig uous, “it is inappropria te t o resor

t to rules of construction or extrinsi c aids to construe the lang uag e.” City of Rock wall v. Hughes , 246 S.W .3d 621, 626 (Tex. 2008).

Moreove r, we deter

mine leg islative intent from the entire statute, not just its isolated provisions. 20801, Inc. v. Parker , 249 S.W .3d 392, 396 (Tex. 2008). “Thus, we ‘re ad the statute

as a whole and interpre t it to g ive eff ect to ever y part.’” State ex rel. State Dep’ t of Highways & Pub. Transp. v. Gonzalez , 82 S.W .3d 322, 327 (Tex. 2002) (quoting Jones v. Fowler , 969 S.W .2d 429, 432 (Tex. 1998)). Consequently , when considering the interplay of the various Sections of the Act,
we must consider their role in the broader statutory scheme. S ee 20801, Inc. , 249 S.W .3d at 396. Wit h these principles in mind, we turn to consideration of the two ty pes of Superfund order s that the Act allows the Commission to i ssue.

11188 orders Section 361.188 is f

ound in Subchapter F, which cover s the reg istry and clea nup of

cer tain hazardous-w aste fac iliti es. See Tex. Hea lth & Safety Code §§ 361.181-.203 (“Reg istry and Cleanup of Certain Hazardous Waste Fa cilities”). Under this Subchapter , the Commi s sion is require d to annually publish an updated state reg istry identify ing those fac iliti es “that may constitute

an imminent and substantial e ndang erme nt to public health and safe ty or the environment due to a rele ase or t h re at en ed rele ase of hazardous substances into the environment” and identify ing the rela tive priority for action at eac h listed f acility

. Id. § 361.181. Subchapter F further establishes a p ro ce s s b y which the Commi ssion may investiga te listed fac iliti es or fac iliti es that the executive direc tor has re ason to believe should be listed on the reg istry

. Id. § 361.182.

Subchapter F empower s the executive direc tor to submit reque sts for inf o r mation and d o cu m en t production to persons who may have rele vant information. Id. § 361.182. Th e Commi ssion may not list a fac ility on the reg istry if the potential endang erme nt can be resolved by (1 ) the owner or opera

tor; (2) “some or all of the potentially responsible parties identified in Subchapter I ” (which deals with enfor ceme nt), see id. § 361.271 (def ining person responsible for solid waste) , under an ag ree d administrative o rd er issued by the Commi ssion; or (3) a voluntary clea nup ag ree ment under Subcha pter S. Id. § 361.183. I f, howeve r, the executive direc tor deter mines that a fac ility is elig ible for listi ng on the state reg istry , the Commi ssion must publish no t i ce of its intent to list the fac ility and allow interested parties to submit written comments and reque st a public meeting to discuss the proposed listi ng . Id. § 361.184(a)

. Fur thermore , the executive direc tor must “ make all rea sonable eff orts to

12identify all potentially responsible parties fo r reme diation of the fac ility ” and notify them of the

proposed lis ting and proce dure f or re questing a public mee ting, a s well as notice of the meeting if one is reque sted. Id. § 361.184(b)- (c)

.

I f a public meeting is held, it “is leg islative in nature and not a contested case hear ing under Chapter 2001, Gover nment Code.” Id. § 361.184(e)

. The meeting ’s purpose is only to obtain “additional information reg arding the facility rela tive to the eligibility of t he facility for lis ting on the s tate reg istry and the identification of potentially responsible pa rties.” Id. I n other words, the meeting does not provide a n opportunity

for potentially

responsible pa

rties to contest liability

. After the pu blic meeting (or opportunity to reque st it has passed) and befor e the Commi s s ion lists the fac ility on the reg istry , it must allow all identified potentially responsible parties the opportunity to fund or conduct “a reme dial investiga tion/feasibility study .” Id. § 361.185. I f a g ood-fa ith offe r from all or some potentially responsible parties is rec eived within 90 day s afte r the Commi ssion issues notice of the potential listi ng , then those making the offe r have an additional 60 day s to neg otiate an ag ree d administrative orde r fr om the Commi ssion, which must include a scope of work but which “may not require the participa ting potentially responsible parties to a g ree
to perf orm the reme dial action or ad m i t liability for the fac ility reme diation.” Id. § 361.185(a)

. Section 361.185 empower s the Commi ssion to conduct or complete the study using funds from the hazardous-w aste disposal-fee fund if no g ood-fa ith offe r to do so is rec eived. Id. § 361.185(b). This Section also encour ag es potentially responsible parties to perf orm the study by providing that costs for Commi ssion o v er sight of the study may not be assessed ag ainst those parties who fund or perf orm the study , but full costs for Commi ssion oversig ht may be assessed ag ainst nonparticipa ting

13potentially responsible parties “who are ultimately deter mined to be liab l e fo r remediation of the fac ility under [ the Act] or who subsequently enter into an agr eed order r elative to the r emediation of the fa cility .” Id. § 361.185(c)

.

Subchapter F further provides the Commi ssion with the ability to s e lect, afte r a public meeting , the ap p ro p ri at e land use (if other than residential) for the land upon which a fac ility is located that is the s ubject of a remedial i nvestig ation/fea sibili ty study fo r the purpose of selecting

a proposed reme dial action. Id. § 361.1855. The Commi ssion also controls whether a partial or total

re m o v al action may be perf ormed at a fac ility elig ible for listi ng on the reg istry and whet h er an

owner or opera tor may substantially chang e t h e u s e o f the fac ility so that any chang e does not interfe re w ith a proposed or ong oing r emedial investig ation/fea sibili ty study

. Id. § 361.186. After the reme dial investiga tion/feasibility study is complete, the executive direc tor
must selec t a proposed reme dial action, and the Commi ssion must hold a public meeting to discuss the proposed action. Id. § 361.187(a)

. Ag ain, n o t ice of the meeting must be provided to eac h potentially responsible party , but the public meeting is leg islative in nature and not a contested- case hear ing and is held for the purpose of obt aining “additional information reg arding the facility and the identifica tion of additional potentially responsible parties.” Id. § 361.187(b)- (c) . Whil e those in attendanc e may comment on the proposed action, and the executive direc tor may choose to revise the proposed reme dial action i n l i gh t of the prese ntations, this meeting does not provide an opportunity

for potentially

responsible pa

rties to challeng e liability

. See id. § 361.187(c)

. Af t er t h e public meeting , the Commi ssion must allow all identified potentially responsible parties the opportuni t y t o fund or perf orm the proposed reme dial action.

14Id. § 361.187(d). I f a g ood-fai t h o ffe r from all or som e potentially responsible parties is rec eived

within 60 day s after

the public meeting , then those making the offe r have an additional 60 day s to
neg otiate an ag ree d administrative order from the Commi ssion, which must include a scope of work, but ag ain t he C ommissi on “may not require an ad m i s s i o n of l iability in the agr eed administrative order .” Id. L ike the fea sibili ty -study Section, this Sec tion also encour ag es potentially responsible parties to perf

orm the reme dial action by providing that costs for Commi ssion oversig ht of the action
may not b e as s essed ag ainst those parties who fund or perf orm the action, but full costs for Commi ssion oversig ht may be assessed ag ainst nonparticipa tin g p o te n ti a ll y r e s p o n s ib le p a rties “who

are ultimately

deter mined to be liable for

reme diation of the fa cility .” Id. § 361.187(e)

. This Section further provides that the executive direc tor may authorize a potentially responsible party to c onduct a partial re medial ac tion if (afte r notice and opportunity for comment
to all other potentially responsible parties) the executive direc tor deter mines t h at t h e re l ease or threa tened rele ase is “divisible.” Id. § 361.187(f)

. The Section define s “divisible” as meaning “that the hazardous substance rele ased or threa tened to be rele ased is capa ble of being manag ed separ ately under the reme dial action plan,” but it specific ally provides that “[a] deter mination of divisibi lity by
t h e ex ecutive direc tor does not have res judicata or collater al estoppel eff ect on a poten t i al l y responsible party ’s ultimate liability for reme diation of t h e fac ility under Subchapter G [‘Enforce ment; Criminal and Civil Penalties [R epea led]’] or I [‘Enf o r c e me n t; A d

mi n is tr a ti v e Orde rs Concerning I mminent and Substantial Endang erme nt’].” Id.

15Finally , Section 361.188 itemiz es the require d conten ts o f a f ina l administrative order that the Commi ssion “shall issue” afte r considering all g ood-fa ith offe rs to perf orm a reme dial action at a f acility elig ible for listing on the state re g istry . The fina l administrative order must:
(1) lis t t h e fa cility on the s tate reg istry , thus deter mining that the facility poses an imminent and substantial endang erme nt to public health and safe ty or the environment; (2) specify the appropr iate land use for purposes of selec ting the appropr iate reme dial action; (3) specify

the selec ted re medial ac tion; (4) list t he par

ties determined to be responsible for reme diating the fac ility ; (5) make fi n d i n g s of fac t descr ibing actions voluntarily underta ken by responsible pa

rties; (6) order the responsible parties to reme diate the fa ci lity and, if appropr iate, reimburse the hazardou s wa ste disposal fee fund for reme dial investiga tion/feasibility

study and re mediation costs; (7) establish a sche dule for c ompletion of the reme dial action; (8) state any

deter mination of divisibi lity

of re sponsible party

liability ; and (9) g ive notice of the duties and restrict ions imposed by Section 361.190 [“Change in Use of L isted Fa cility ”].

Id. § 361.188(a)

. I n addition, this Section establishes that “[t] he provisions in Subchapter s I , K, and L relating to adm inis trative orders apply to order s issued under this section.” Id. § 261.188(b) (footnote omitted) (empha sis added) ; see also id. §§ 361.271-.279 (Subchapte r I : Enforc ement; Administrative Orde rs Concerning I mminent & Substantial Endang erme nt); 3 6 1 .321-.323 (Subchapte r K: Appe als; J oinder of Par ties); 361.341-.345 (Subcha pter L : Cost R ecove ry

).

16272 orders S ec t i o n 361.272 is found in Subchapter I , which cover s enfor ceme nt and administrative order s conce rning imminent and su b s t antial endang erme nt, and is one of the Subchapter s whose provisions rela ting t o administrative order s apply to 188 order s. See id. §§ 361.271-.280; see also id. § 361.188(b). Section 361.271 define s “per sons responsible for solid waste” and trac ks the cate g ories found in CERCL A, holding responsible curr ent and former owner s

or opera tors of a solid-waste faci lity ; “ar rang ers” of storag e, disposal, proce ssing, or transport of solid waste; and transporte rs of solid waste. Id. § 361.271(a) ; see also 42 U.S.C. § 9607(a)

. Section 361.272 allows the Commissi on to:
(a)

. . . issue an administrative order to a person responsible for solid waste if it appea rs that there is an ac tual or threa tened rele ase of solid waste that prese nts an imminent and substantial endang erme nt to the public health and safe ty or the e nvironment: (1) from a solid wa ste fac ility at which solid waste is store d, proce ssed, or disposed of; or (2) at any site at which one or more of those a ctivities conce rning solid waste have been co nducted in the past, reg ardle ss of whether the activity was law ful at the time. (b) An administrative orde r may be issued under

this section to: (1) restra i n the person from allowing or continuing the rele ase or threa tened r elea se; and (2) require the person to take any action nece ssary to p ro v i d e and implement a cost eff

ective and environmenta lly sound reme dial action plan desig ned to eliminate the r elea se or thre atene d rele ase.

17Id. § 361.272(a) -(b)

. I n addition, t h e Commi ssion may sue for injunctive relief to restra in a

responsible person from allowing or continuing the rele ase or threa tened rele ase and to r equire the person to take actions nece ssary to provide and implement a remedial actio n p l an . Id. § 361.273. Subchapter I also specific ally establishes that “[a]n administrative order under Section 361.272 does
not require prior notice or an adjudicative hear ing befor e the commission.” Id. § 361.274. Section 361.275 enumer ates the defe nses t o liability and st ates that a person r esponsible for solid wa ste is liable under Section 361.272 or 361.273 unless the person can establish by a preponde ranc e of the evidenc e that the rele ase or threa tened rele ase was cause d solely by an act of God, an act of war , an

ac t o r o m i s s ion of a third person, or any combination of those events. Id. § 361.275(a)

. Section 361.276 provides for the apportionment of liability if the rele ase or threa tened rele ase is proved by

a preponde ranc e of the evidenc e to be divisibl e and provides that if it is not proved divisibl e, persons liable under

Section 361.272 or 361.273 ar e jointly and sever ally liable for eliminating the r elea se

or threa tened rele ase. Id. § 361.276(a)

. The Section define s “divisible” as meaning “that the waste rele ased or threa tened to be rele ased has been and is capa ble of being manag ed separ ately under the

reme dial action plan.” Id. § 361.276(b).

Issui ng an order und er both Sect ions The Commi ssion contends that the two ty pes of Superfund order s are mutually exclusive and one administrative order cannot be issued under both provisions, but nothing in either the specific provisions or in the overa ll context of the statutory scheme leads to that conclusion. We
presume that the L eg islature chooses a statute’ s la n g u a g e w it h c a r e , purposef

ully choosing eac h word it includes, while purposef ully omitti ng words not chosen. TGS-NOPEC Geophy sical Co. v. Combs , 18340 S.W .3d 432, 438-39 (Tex. 2011). I f the L eg islature had intended to make the t wo o rders

mutually exclus ive, it would have said so. I nstead, it cra fted a statutory scheme under which the Commi ssion is empower ed (1) to issue an order that results in a hazardous-w aste fac ility being listed

on the state Superfund reg istry afte r a leng thy proce ss involving public meeting s befor e completion of an investiga

tion/feasibility study and selection of a reme dial ac t i o n an d (2) to issue an order to
restra in a rele ase or threa

tened rele ase of solid waste and require the provision and implementation of a reme dial action plan without the require ments of public meeting s or an investiga tion/feasibility study and without prior notice to potentially responsible pa

rties. Nothing in the Act prec ludes the Commi ssion from issuing an order under both sections simult aneously

. I n fac t, the L eg islature, by stating that “[t] he provisions in Subchapter s I , K, and L rela ting to administrative order s apply to order s issued under this Section [361.188] ,” Tex. Hea lth & Safety Code § 361.188(b), made the provisions in Section 361.272, which is in Subchapter I and conce rns “Administrative Orde rs Concernin g I mminent and Substantial Endang erme nt,” apply
to 188 order s. See id. § 361.188(a) (1) (establishing that by issuing final administrative order under this S ection listing fa cility on state reg istry , Commi ssion “ thus de termin[es] that the fa cility poses

an imminent and substantial endangerm ent to public health and safe ty or the environment (empha sis added) ). Allowing the Commi ssion t o i s s u e an order under both Sections 361.188 and 361.272 comports with the Act’s purpose of protec ting the environment by allowing the Commi ssion to include the broade r cate g ory of “solid waste” in an order listi ng a site on the state Superfund reg istry , which means it may be able to include more potentially responsible parties , wh i l e h av ing the two order s in separ ate sections g ives the Commi ssion the flexibi lity to issue a 272 order without g oing

19throug h the 188 proce s s . We conclude that it is possible for the Commi ssion to issue one order

under both Sec tions 361.188 and 361.272.

Sub chapter K : appeals; joinder of p artie s Subchapter K contains Sections 361.321 and .322, both of wh i ch co n cer n appea ls, and Section 361.323, a provision conce rning joinder of parties in an inj unction action filed by the State under Secti o n 3 6 1

. 2 7 3. At issue is whether a 188 order is g overne d on appea l by Section 361.321 or Section 361.322. Section 361.321 establishes a substantial-evidenc e standard of revie w under which “a p er s o n affecte d by a ruling, order, decision, or ot her act of the commi ssion” must
prove that the Commi ssion’s action “is invalid, arbitra ry , or unrea sonable,” i.e., t h at t he C o mmissi on’s action is subject to substantial-evidenc e revie w. See id. § 361.321(e)

. Section 3 361.322, on the other hand, provides that when “any person subject to an administrative order under Section 361.272” appe als the orde r by filing a petition:

the district court shall uphold the administrative order if the Commi ssion proves by a pre pondera

nce of the evidenc e that: (1) there is an actua l or threa tened rele ase of solid waste or hazardous substances that is an imminent and substantial endange rment to the public health and safe ty or the e nvironment; and (2) the person made subject to t h e ad m i nistrative order is liable for the elimination of the rele ase or threa tened r elea se, in whole or in pa rt.

See supra note1. 3 20Id. § 361.322(g ). I n addition, Section 361.322 provides that “[i] f the appropr iateness of the selec ted

reme dial action is contested in the appeal of the admini strative order, the reme d i al action shall be upheld unless the court deter mines that the reme dy is arbitra ry or unrea sonable.” Id. § 361.322(h). The Commi ssion asser

ts that both the statutory history and the plain lang uag e of the Act show that 188 and 272 order s are separ ate and distinct and have separ ate provisions for appea l. I n particula

r, the Commi ssion contends that beca use specific lang uag e preva ils over g ener al, Section 361.322 must apply only to 272 order s, and Section 361.321 must apply to all other ty pes of order s and decisions. We, howeve r, must first look to the plain lang uag e of the statute for the L eg islature’s i n t en t , “a n d o n ly if we cannot discern leg islative intent in the lang uag e of the statute itself do we

resor t to canons of construction or other aids such as which statute i s m o re s p ec i fi c.” First State Bank of De Quee n , 325 S.W .3d at 639.

The Com mission emphasizes that the “plain lang uag e” of Section 3 6 1

. 3 2 1 applies
to administrative order s under Section 361.18 8 b ec ause it applies to any “orde r . . . of the commission,” while Section 361.322 states that it applies to an “administrative order under Section 361.272.” Howeve r, the lang uag e found in Section 361.188 is clea r that “[t] he provisions in Subchapter s I , K, and L relating to adm inis trative orders apply to order s issued under this section.” Tex. Hea lth & Safety Code § 361.18 8 (b) (footnote omitted) (empha sis added)

. The Commi ssion
urg es that this lang uag e only incorpora tes provisions from Subchapter s I , K, and L to the extent that apply ing those provisio n s wo u l d not lead to absurd or nonsensical results. The Commi ssion

conce des that the deadline for appea l an d t h e s t andards of revie w in Section 361.322 “re late to administrative orde rs,” see id. § 361.188(b), but it arg ues that apply ing the deadline a nd standards

21of revie w to 188 order s would lead to a bsurdities. I t makes the c ircular arg ument that beca

use the deadlines for appea l and standards of revie w are differ ent for eac h ty pe of order , the order s must be
separ ate and distinct, and “the L eg i s l at u re would not have delibera tely written a statute providing for two differ ent deadlines for the appea l of a single order , or two differ ent standards of revie w for a sing le eleme nt, such as liability , within a n order .” This a

rg ument depends on the Commi ssion’s mistaken premise t h at the Commi ssion cannot issue one order under both Section 361.188 and Section 361.272.

We ag ree that the L eg islature would not delibera tely write a st at u t e p ro v iding two differ ent deadlines for appea ling one order or two differ ent standards of revie w for an element of an

o rd er . Ha ving alre ady conclude d that one order can be issued under both Sections, howeve r, we further conclude that under a plain rea ding of Section 361.188(b), the L eg islature expressed its intent that both Sec tions 361.188 and 361.272 should be g overne d by one set of deadlines for appea l and standards of revie w—those that are found in Section 361.322. This conclusion is further reinfor ced by examining Subchapter I , which is entitled “Enfor ceme nt; Administrative Orde rs Concerning I mminent and Substantial Endang erme nt” and is the Subchapter in which Section 361.272 is loca te d

. As explained above, by maki n g t h e provisions in Subchapter I applicable to 188 order s, the L eg islature made the provisions in Section 361.272 applicable to 188 order s. Since Section 361.272 applies to 188 order s, refer en ce s t o administrative order s issued under Section 361.272 must also b e re fe renc es to administrative order s issued under Section 361.188. Fur thermore , if we r ead “ issued under Sec tion 361.272” to prec lude applica tion to 188 orders, the L eg islature’s decla

ration t h at “[t] he provisions in Subchapter [] I

. . . relating to adm inis trative

22orders apply to order s issued under t h i s s ection” would be rende red meaning less. See Columbia

Med. Ctr. of Las Colinas, Inc. v. Hogue , 271 S.W .3d 238, 256 (T ex . 2 008) (cour ts “must not interpre t the sta tute in a manner that rende rs any part of the statute meaning less or superf luous”); City of Marshall v. City of Unce rtain , 206 S.W .3d 97, 105 (Tex. 2006) (whe n possible, courts must
g ive eff ect to “eve ry sentenc e, clause , and word of a statute” so that no part is rende red superf luous);

s ee also Tex. Gov’t Code § 311.021(2) (establishing presumption that when L eg islature en ac t s a statute, “the entire statute is intended to be eff ective” ). Every ref

ere nce in Subchapter I to an “administrative order ” specific ally ref ere nces either Secti o n 3 6 1

. 272 or “a person responsible for solid wa ste under Section 361.271,” i.e., the targ et of a 272 order

. See Tex. He alth & Safety Code §§ 361.273 (Commissi on may seek injunction to restra in a person responsible for solid waste under Section 361.271 as alternative to administrative order), .274 (“a dminist rative or d er u nder Section 361.272” d o es n o t require prior notice or adjudicative hear ing) , .275 (establishing that “per son responsible for solid waste under Section 361.271 is liable under Section 361.272 or 361.273” unless
person can establish defe nses by preponde ranc e of t h e evidenc e), .277 (establishing eff ect of settlement ag ree ment with State to take re medial ac tion to abate an actual or threa tened relea se of solid waste that is an imminent and substantial e ndang erme nt to the public health and safe ty or the environment “under an administrative order issued under sect i o n 3 6 1 .272”). Consequently , ref ere nces in Subchapter I to “an administrative order under section 361.272” must also incorporate an administrative or der issued unde r Section 361.188.

T h e s ame logic applies to Subchapter K. Section 361.322 conce rns appea ls of administrative order s issue d under Section 361.272. As explained above, the ref ere nce to “an administrative order under Section 361.272” must also incorporate a 188 order b ec au s e Section
23361.272 applies to 188 or ders. I n addition, of the two appellate provisions, Sec tion 361.322 is the

only one that rela tes to an appea l by “ any p er s o n subject to an administrati ve order .” Id. § 361.322(a) (empha sis added)

. I n contra st, Section 361.321 allows “ a person affected by a ruling , order , decision o r o ther act of the

. . . commission” to appea l the Commi ssion’s action. Id. § 361.321(a) (empha sis added). The Act def ines “pe rson af

fec ted” a s:

a pe rs o n wh o d emonstrates that the person has suffere d or wil l suffe r actual injury or ec onomic damag e and, if the per son is not a local g overnme nt: (A) is a resident of a county , or a county adjac ent or contig uous to the county , in which a solid waste f acility is to be located; or (B ) is doing business or owns land in the county or adjac ent or contig uous county

.
Id. § 361.003(24). This provision applies to persons residing or doing business in a county or adjac ent or contig uous county “in which a solid waste fac ility is to be located ” who can demonstrate that they have suffe red o r wi l l s u ffer actua l injury or economic damag e from the contemplated solid-waste fac ility

. Id. (empha sis added)

. Subchapter F and Section 188 order s conce rn the reg istry and clea nup of exis tin g hazardous-waste fac iliti es, which ag ain are define d for purposes of the subchapte r as “a n y site or area where a hazardous substance has been deposited, st ored, disposed of, or place d or otherwise come to be located.” Id

. § 361.181(c) (1) (empha sis added)

. “[P] arties deter mined to be responsible for reme diating the fac ility ” and order ed to reme diate the fac ility in a 188 order at the conclusion of the Subchapter F reg istry and clea nup proce ss, see id. § 361.188(a) (4), (6), do not fit the definition o f a “p er s on aff ecte d” who may appea l a Commi ssion action under Section 361.321. Fur

thermore , Subsection 361.322(g ) i n cl u d es “hazar dous substances,” the

24materia ls reg ulated by 188 order s, as part of the preponde ranc e-of -the-e vidence standard of revie w. See id. § 361.322(g ) (Commissi on must prove “actual or threa tened rele ase of solid waste or hazardous substances” ). Unless Section 361.322 applies to 188 order s, the inclusion of “hazar dous substances” is superf

luous beca

use 272 order s apply to “solid waste,” which includes “hazar dous substances.” See Columbia Med. Ctr. , 271 S.W .3d at 256. Simi larly , Section 361.322’s descr iption of parties who must be joined includes “any other person who is or may be liable for the elimination of the actua l or threa tened rele ase of solid waste or hazardous substan ce s g overne d by the administrative order ,” and the inclusion of “hazar dous substances” is superf luous unless Section 361.322 applies to 188 order s. See Tex. Hea lth & Safety Code § 361.322(d). Considering the statute

as a wh o le, we conclude that Section 361.322 applies to both 188 order s and 272 order s, and we

overr ule the Commi ssion’s first issue. See First State Bank of DeQue en , 325 S.W .3d at 639 (holding that when c ourts can disc ern le g islative intent from statute’s lang uag e, courts need not use ca nons of construc tion, such as which statute is more specific , or other a ids, such as leg islative history ).

Although this conclusion means that we need not re ac h the Commi ssion’s second issue contending that it issued the Voda Orde r onl y under Section 361.188, we note that the p l ain lang uag e of the Voda Orde r indicates that it wa s issued under both Sec tions 361.188 and 361.272. See Office of Pub. Util. Counsel v. T exas- New Mex ico Pow er C o. , 344 S.W .3d 446, 450-51 (Te x . App.—Austin 2011, pet. denied) (cour ts apply same rules when construing order of administrative
ag ency that are applied when construing statutes). I n addition to the introductory lang uag e at the beg inning of the Orde r, there are provisions throug hout the Orde r that indicate it wa s issued under Section 361.272 as well as Section 361.188, including ref ere nces to “s o l id waste,” not just “h az ar dous substances.” We also note that the Commi ssion conducte d itself in the trial court for
25four y ear s as if the Or der w ere appea lable under Section 361.322, not just S ection 361.321. Af ter issuing an order incorpora ting both Sections and proce eding for y ear s as if the parties would try the

case under a prepon d era

nce- of-the- evidenc e standard, the Commi ssion’s reve rsal of position for strateg ic re asons does not cha ng e the e ssential nature of the Voda Orde r.
Sovereign im m uni ty I n its t h i rd issue, the C ommissi on does not dispute that both Sections 361.321 and 361.322 contain waiver s of immunit y beca use the L eg islature has confe rre d a ri gh t o f judicial revie w; instead, it asser

ts that courts lack subject-matter jurisdiction to revie w the Voda Orde r under
any section other than Section 361.321. We overr ule this issue based on our conclusion that Section 4 361.322 applies to 188 order s.

Ex x onMobil and Shell asser t on appea l that this Court lacks jurisdiction to hear the appea l, 4 essentially reur g ing their arg ument that the Commi ssion ’s plea did not implicate the trial court’s subject-matter jurisdiction beca use the Commi ssion did not challeng e the waiver of sovere ign immunit y found i n the appellate provisi ons of t he Act and ins tead sought only a decision on what standard of

revie w the trial c ourt should use. Our jurisdi ction over this case is derive d from Civil Pr a c ti c e and Remedies Code Section 51.014(a) (8), which permits the interlocutory appea l o f a n o r d e r deny ing a plea to the jurisdiction by a g overnme ntal unit. That is the proce dural posture of this case . More importantly , the substance of the Commi ssion’s challeng e is that Section 361.322 does not contain a waiver of immunit y for the ty pe of administ ra t i v e o rder issued in this case . “The re is [gene rally ] no rig ht to judicial revie w of an administrative order unless a statute expli citly provides t h at rig ht

. . . .” Houston Mun. Emps. Pension Sys. v. Ferrell , 248 S.W .3d 151, 158 (Tex. 2007 ). Whil e answe ring that question here may have the eff ect of deter

mining which standard of revie w appl i es , the answe r itself implicates the trial court’s jurisdiction. The Texas Supreme Court’s decision in City of W

aco does not chang e our analy sis of the statutory provisions at issue in this case . See Texas Comm’n on E nvt’l Quality v. City of W aco , 413 S.W .3d 409, 411, 415, 420, 424 (Tex. 2013) (re viewing Commi ssion’s denial of a contested- case hear ing reque st in a permitting matter for an abuse of discretion when the underly ing statute did not specify a standard of revie w and wh en party s ee k i ng contested- case hear ing “wa s aff orded sever al opportunities to make a rec ord in the ag ency ”). 26CONCLUSION Having conclude d that Section 361.322 applies to administrative order s issued under both Sections 361.188 and 3 6 1 .272 and that Section 361.322 contains a waiver of sovere ign immunit y , we a ffirm the tria l court’s orde r deny ing the Commi ssion’s plea to the jurisdiction.

__________________________________________ Cindy Olson Bour land, J ustice Be fore J ustices Pury ear , Pemberton, and B ourland Affir med on Motion for Rehea ring Filed: Oc tober 31, 2016

27