TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-02-00642-CV

Coalition for Long Point Preservation and Mr. and Mrs. William Sutton, Appellants

v.

Texas Commission on Environmental Quality and Long Point Partners, L.L.P., Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT

NO. GN100942, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING

O P I N I O N

Appellants, the Coalition for Long Point Preservation and Mr. and Mrs. William Sutton 

(collectively Athe Coalition@), appeal from a district-court judgment affirming a final order of the Texas 

Commission on Environmental Quality granting a permit to build and operate a municipal solid-waste landfill 

to Long Point Partners, L.L.P. (Long Point). The Coalition asserts in six issues that substantial evidence 

does not support the Commission=s findings and conclusions that Long Point made all of the required 

regulatory demonstrations relating to fault studies, subsidence, groundwater monitoring, floodplain analysis, 

excavation, and drainage. Because we find substantial evidence to support the Commission=s order, we 

affirm the district court=s judgment affirming that order. 
2

BACKGROUND

Long Point filed an application for a municipal solid-waste permit with the Commission to 

enable it to build and operate a landfill in Fort Bend County. Public notice was given when the application 

was administratively complete to inform potentially affected parties of their right to request a contested-case 

hearing. Several parties, including the Coalition, opposed the proposed permit and requested a contestedcase hearing. The Commission granted a hearing and referred the matter to the State Office of

Administrative Hearings. After several days of testimony, the two presiding administrative law judges 

(ALJs) issued a proposal for decision in favor of granting the permit, which the Commission accepted with 

minor alterations not relevant here. The Commission then entered its final order approving Long Point=s 

application and issued the permit. The Coalition filed a suit for judicial review in Travis County district 

court. See Tex. Gov=t Code Ann. ' 2001.171 (West 2000); Tex. Water Code Ann. ' 5.351 (West 

2000). The district court affirmed the Commission=s order, and the Coalition now appeals. 

DISCUSSION

Judicial review of an administrative order following a contested-case proceeding is 

governed by the substantial evidence rule. See Tex. Gov=t Code Ann. ' 2001.174 (West 2000). The 

Coalition asserts that the Commission=s decision to issue Long Point the permit is not supported by 

substantial evidence in the record. See id. ' 2001.174(2)(E). In conducting a substantial-evidence review, 

we determine whether the evidence as a whole is such that reasonable minds could have reached the same 

conclusion as the agency in the disputed action. Stratton v. Austin Indep. Sch. Dist., 8 S.W.3d 26, 30 

(Tex. App.CAustin 1999, no pet.). We may not substitute our judgment for that of the agency and may 
3

only consider the record on which the agency based its decision. Id. The issue for the reviewing court is 

not whether the agency reached the correct conclusion, but rather whether there is some reasonable basis in 

the record for its action. City of El Paso v. Public Util. Comm=n, 883 S.W.2d 179, 185 (Tex. 1994). 

The findings, inferences, conclusions, and decisions of an administrative agency are presumed to be 

supported by substantial evidence, and the burden to prove otherwise is on the contestant. Stratton, 8 

S.W.3d at 30.

The Coalition asserts six issues on appeal, each pertaining to a different regulatory

requirement that an applicant must meet in order to be granted a permit to build and operate a landfill. We 

will address each issue separately. 

Groundwater monitoring

Title 30, section 330.231, of the administrative code requires applicants to submit a 

groundwater-monitoring plan that Aconsists of a sufficient number of monitoring wells, installed at 

appropriate locations and depths, to yield representative groundwater samples from the uppermost aquifer@

that will Aensure the detection of groundwater contamination in the uppermost aquifer.@ 30 Tex. Admin. 

Code ' 330.231(a), (a)(2) (2002). The Coalition argues that because the monitoring plan calls for wells 

that are positioned to detect contaminants at a maximum depth of approximately 50 feet below surface, 

when the aquifer extends to a depth of 150 feet, the plan is Agrossly inadequate.@ The Coalition is 

concerned that the plan allows 100 feet of the uppermost aquifer to go unmonitored and therefore cannot 

Aensure@ that contamination in the aquifer would be detected. 
4

Long Point=s expert geologist, Richard Smith, testified that vertical migration of contaminants 

through the aquifer would be unlikely because of its heterogeneity (it is composed of interbedded clays and 

sands). He testified that the most Atransmissive@ zone of the aquifer is located in its top portion. The record 

also contains evidence of a professional flowpath analysis indicating that contaminants reaching the aquifer 

will move laterally to the northeast, east, and southeast, but that there is a Ageneral lack of vertical gradients 

[i.e., pathways]@ in the aquifer. This evidence supports the ALJs= conclusions that contaminant flow through 

the aquifer will be lateral and that monitoring wells extending short of the entire depth of the aquifer are 

therefore adequate to detect contamination. In their proposal for decision, the ALJs noted that there is 

nothing in the record to indicate that contaminants moving through the aquifer will not be detected by the 

planned wells. They note, logically, that contaminants present at the bottom of the aquifer would have to 

pass through its upper parts to reach the greater depths. Although the wells are to be located at intervals of 

approximately 600 feet, and theoretically one could imagine that contaminants seeping into the earth 

between two wells could go unmonitored if they moved directly downward, the evidence is sufficient to 

support the ALJs= conclusion that any contaminants would instead move laterally and thus be detected by 

one or more wells. 

Although the Coalition argues that the depth of the monitoring wells is inadequate, the only 

evidence supporting this position is testimony by the Coalition=s expert, Allen Messenger, who opined that 

Long Point had not demonstrated an adequate understanding of the hydrogeologic conditions at the site to 

show that the proposed monitoring wells would ensure detection of groundwater contamination. However, 

the ALJs were unpersuaded by Mr. Messenger=s testimony on this point because much of the information 
5

concerning the uppermost aquifer is contained in geophysical logs, which Mr. Messenger admitted were 

beyond the scope of his expertise. The ALJs were free to weigh the evidence as they deemed appropriate. 

See Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 567 (Tex. 2000); Texas Water Comm=n 

v. Boyt Realty Co., 10 S.W.3d 334, 343 (Tex. App.CAustin 1993, no writ).

We hold that there is substantial evidence in the record to support the findings and 

conclusions that Long Point=s groundwater-monitoring plan is sufficient.1 We overrule the Coalition=s third 

issue. 

Holocene fault

Title 30, section 3330.303(a) of the administrative code provides that landfills Ashall not be 

located within 200 feet of a fault that has had displacement in Holocene time unless the owner or operator 

demonstrates to the executive director that an alternative setback distance of less than 200 feet will prevent 

damage . . . .@ 30 Tex. Admin. Code ' 330.303(a) (2002). Displacement is defined as the Adistance 

between two formerly adjacent points situated on opposite walls of a fault.@ Id. ' 330.2(37). A fault is Aa 

fracture or a zone of fractures in any material along which strata, rocks, or soils on one side have been 

displaced with respect to those on the other side.@ Id. ' 330.2(49). Thus, to comply with the regulations, 

without providing an additional demonstration to the Commission, an applicant=s site must not be located 

 

1

 The Coalition also asserts that the ALJs improperly shifted the burden from Long Point to the 

Coalition by requiring it to show that the system would not be adequate, as opposed to requiring Long Point 

to prove that it would be. However, the Coalition did not preserve this issue for review because it failed to 

raise it in its motion for rehearing. See Central Power & Light Co. v. Public Util. Comm=n, 36 S.W.3d 

547, 569 (Tex. App.CAustin 2000, pet. denied). 
6

within 200 feet of a particular kind of faultCone that has had Adisplacement in Holocene time@

(approximately the last 10,000 years).

The ALJs found that Athe proposed landfill unit will not be located within 200 feet of a fault 

that has had displacement in Holocene time.@ Long Point has therefore sufficiently met the requirement of 

the regulation if there is substantial evidence to support the ALJs= finding. The Coalition cites evidence in 

the form of a contour map showing geologic units on the west side of the map at a higher elevation than 

those on the east side to assert that the landfill site is situated within 200 feet of a fault that has had 

displacement in Holocene time. It asserts that this difference in elevation is a displacement and that Long 

Point never disputed the fact that if a fault were present within the site, it would be a Holocene fault. 

However, the evidence in the record is almost entirely to the contrary, and certainly constitutes substantial 

evidence to support the finding that the landfill will not be located within 200 feet of a fault that has had 

displacement in Holocene time.

Regarding the contour map, the Coalition argues that the differences in elevation of units 

between the east and west sides of the site constitute a fault because any displacement must reveal a fault, 

as direct evidence of a fracture is virtually impossible. In other words, a fracture is an event, which itself is 

very hard to observe if one is not at the right place at the right time, and one must therefore look to the 

after-effects of the fracture to identify it. In our analysis, using logic and the definition of a fault, we can say 

that a fracture is a cause, and displacement is its effect. A fracture, or break, will cause displacement. 

However, the reverse does not necessarily hold true: a displacement is not necessarily caused by a fracture; 

it may have different causes. Indeed, a Commission staff geologist, T. Wesley McCoy, testified that the 
7

elevational differences between the east and west sides were due to the fact that the sediments had been 

deposited not on flat surfaces, but on curved ones (so-called Alenticular bodies@). Dr. Carl Norman, Long 

Point=s geologist, similarly testified that the differences were not due to structural changes caused by a fault 

or an earthquake, but to variations in how the layers of earth were deposited (Astratigraphic changes@). Dr. 

Norman testified that to prove the existence of a fault in the area, the elevational difference (Avertical offset@) 

between displaced soils of individual layers of earth must increase with depth. Because the site data 

revealed greater offset at a depth of 200 feet than at depths below, the differences in elevation could not 

have been caused by a fault. 

The Coalition next argues that evidence in addition to the contour map proves a Holocene 

fault. To the contrary, three sources of evidence in the recordCtestimony of the Coalition=s own geologist, 

Dr. Howard C. Clark, testimony of Long Point=s geologist, Dr. Norman, and the reference source 

Geologic Atlas of TexasCall indicate that the site is composed of sediments deposited during the 

Pleistocene Epoch, the geologic period preceding the Holocene Epoch. Dr. Norman further testified that 

because the surface sediments are of the Pleistocene age and have thus been present throughout the entire 

Holocene age, any fault at the site that has had displacement in Holocene time would be noticeable at the 

surface in one form or another (a Asurface expression@). Although there is some evidence in the record of a 

surface expression in the form of a steep slope (or Ascarp@) caused by a fault, other evidence rebuts it. One 

expert testified that the scarp was caused by pipelines running beneath the area, while another expert 

testified that he had extensively walked the entire site area and had found no scarps at all. At the hearing, 

the Coalition also argued that there is additional surface evidence of a fault in the form of a surface 
8

depression (or Asag pond@) identified by its expert, Dr. Charles Kreitler. However, when questioned about 

the sag pond, Dr. Kreitler stated that there had previously been a levee in essentially the same location 

whose purpose was to keep water out of the subsiding area where active mining had been occurring. The 

ALJs were the sole judges of the weight to be assigned to conflicting evidence of the alleged fault. We 

conclude that the record contains substantial evidence that a fault with displacement in Holocene time does 

not exist within 200 feet of the proposed landfill and overrule the Coalition=s first issue.

Subsidence

Landfill operators applying for a permit must provide a description of the geologic 

processes active in the vicinity of the facility. Id. ' 330.56(d)(3)(A) (2002). The description must include 

Aan identification of any faults and subsidence in the area of the facility. The information about faulting and 

subsidence shall include at least that required in ' 330.303(b) and ' 330.305 of this title.@ Id. Section 

330.303(b), relating to fault areas, requires: 

Applications submitted for the operation of sites located in areas that may be subject to 

differential subsidence or active geological faulting shall include detailed fault studies. . . . 

Areas experiencing withdrawal of crude oil, natural gas, [or] sulfur . . . shall be investigated 

in detail for the possibility of differential subsidence or faulting that could adversely affect 

the integrity of landfill liners.

Id. ' 330.303(b) (2002). Section 330.305 defines an unstable area to be Aa location that is susceptible to 

natural or human-induced events or forces capable of impairing the integrity of some or all of a landfill=s 

structural components responsible for preventing releases from the landfill@ and requires owners of landfills 
9

located in such areas to demonstrate that engineering measures have been incorporated into the landfill=s 

design to ensure that the integrity of its structural components will not be impaired. Id. ' 330.305 (2002).

Long Point determined whether subsidence was occurring at the site by driving four 

markers, or Amonuments,@ into the ground at varying locations at the southern boundary of the site. The 

monuments were placed near the edge of where previous subsidence had occurred just south of the site 

boundary due to earlier sulfur-mining activity. Long Point measured the elevation of these monuments nine 

times over a two-year period. The ALJs determined that this subsidence study adequately revealed that 

subsidence had ceased in the vicinity of the site. In addition to this monument study, Long Point also 

conducted a survey of the foundations of existing structures built on the site in the 1940s, which revealed 

that no differential subsidence had occurred at the location since that time.

The Coalition argues that Long Point failed to comply with section 330.56 (d)(3)(A) by not 

identifying whether Aany@ subsidence is occurring. Specifically, the Coalition challenges finding of fact 116: 

AData collected over a two year period from subsidence monuments between Davis Estate Road and the 

proposed landfill unit show that no subsidence occurred at the monuments over that period of time.@ The 

Coalition asserts that this finding is not supported by substantial evidence because Long Point=s placement 

of the monuments prevented detection of Asite-wide@ subsidence, as all of the monuments could have been 

subsiding uniformly, and thus the study could not have ruled out Aany@ subsidence. Additionally, the 

Coalition asserts that site-wide subsidence could eventually cause the landfill to subside into the 100-year 

floodplain, and Long Point=s failure to identify site-wide subsidence is therefore fatal to the Commission=s 

issuance of the permit. We disagree.
10

First, the Coalition=s reading of the regulation is in errorCit applies a broad meaning to one 

word, Aany,@ that the regulation itself does not impart. The regulation modifies the requirement to identify 

Aany faults and subsidence@ by stating that such information must include Aat least that required in '

330.303(b) and ' 330.305.@ See id. ' 330.56(d)(3)(A) (emphasis added). Section 330.303(b), in turn, 

reflects a concern about differential subsidenceCparticularly as it may affect landfill linersCrather than socalled site-wide or uniform subsidence: Aareas that may be subject to differential subsidence . . . shall include 

detailed fault studies.@ See id. ' 330.303(b). If the entire site subsides equally, then by definition there is 

no differential subsidence, and no Asubsidence@ in the context of the applicable regulation. Similarly, section 

330.305 reflects a concern about unstable areas because of their potential to impair the integrity of a 

landfill=s structural components (such as a liner designed to prevent leakage of waste). See id. ' 330.305. 

An area is not unstable if its geologic processes will not disrupt the landfill=s structural integrity. See id. 

Read in conjunction with section 330.303(b), section 330.305 does not address the possible effect of sitewide subsidence, but only differential subsidence or other events that could directly impair a landfill=s liner or 

other structural component.

There is expert testimony in the record indicating that even if future subsidence of any kind 

were to occur at the site, the landfill liner=s integrity would not be compromised. This, combined with Long 

Point=s monument study and foundation survey, amounts to substantial evidence that the requirements of the 

regulations were met and to support finding of fact 116. We overrule the Coalition=s second issue.
11

Floodplain analysis

Title 30, section 330.56(f)(4)(B)(i), of the administrative code requires an applicant to 

determine whether the landfill site is located within a 100-year floodplain and to use a Federal Emergency 

Management Agency (FEMA) map, if available, for such determination. Id. ' 330.56(f)(4)(B)(i) (2002). 

Long Point=s expert engineer, Jeffrey P. Young, used a 1997 FEMA flood insurance-rate map that 

delineated the 100-year floodplain, as well as a 1987 Fort Bend County study. His analysis indicated that 

the northeast edge of the permit area sits in the floodplain, but no part of the landfill footprint2 does.

The Coalition argues that Long Point=s floodplain analysis is inaccurate because it relied on 

the county study instead of conducting its own baseline analysis. Thus, it argues, several key items of its 

application and the Commission=s order that depend on an accurate floodplain analysis are not supported by 

substantial evidence. As noted above, Mr. Young used in his analysis not only the county study of which 

the Coalition complains, but also a 1997 FEMA map. It appears that Long Point did exactly as required by 

the regulation in using the 1997 FEMA map. At the hearing, the Coalition relied on evidence that included a 

1992 FEMA map. The delineations of the 100-year floodplain on the 1992 and 1997 FEMA maps are 

identical; the only difference between them is that the 1992 map has flood elevations marked on it while the 

1997 map does not. However, the Coalition argues that Mr. Young used the elevations from the 1987 

county study, which are not accurate, instead of those of the 1992 FEMA study.

 

2

 The landfill Afootprint@ is the portion of the land upon which the waste will actually be stored. 
12

Although there is evidence in the record that some of the elevations on the 1987 county 

studyCthose along a creek-bed upstream from the site at a highway bridgeCmay have been erroneous, 

Long Point=s expert, Mr. Young, did not use those upstream elevations because his analysis did not extend 

to the bridge, which is well outside the boundaries of the site. Furthermore, as the ALJs noted, there is no 

basis in the record to conclude that the 1992 FEMA map elevations are more accurate than those of the 

1987 county study. One of the Coalition=s experts, Dr. Philip Bedient, expressed concerns about the 

county study=s accuracy, but the ALJs did not assign any significant weight to his testimony throughout the 

proceeding, based on his willingness to offer his opinion on matters about which he admitted he knew little 

or nothing, and his repeated inconsistencies and recantations.

Additionally, Long Point=s floodplain analysis and site design allowed for over three feet of 

Afreeboard@ (buffer) at the exterior perimeter road and about eight feet near the landfill footprint, which the 

ALJs determined to be a conservative design. We conclude that the record contains substantial evidence to 

support the conclusion that Long Point=s floodplain analysis provided an accurate delineation of the 100-

year floodplain and overrule the Coalition=s fifth issue. 

Excavation outside the landfill footprint

The Coalition argues that the permit granted by the Commission allows excavation of 

topsoils outside the landfill footprint to be used as cover for waste. It claims that the regulations required 

Long Point to analyze the effects of such excavation on possible flood conditions. Specifically, section 

301.33(b)(2) provides: Aplans shall demonstrate the effects the proposed project will impose on existing 

flood conditions.@ Id. ' 301.34(b)(2) (2002); see Tex. Admin. Code ' 330.56(f)(4)(B)(ii). Long Point 
13

responds that the Commission=s permitting regulations do not address the issue of soil excavation with 

respect to soil cover because the Commission assumes that operators will have enough soil from the 

excavation of the footprint itself to meet all of their soil needs. Long Point and the Commission additionally 

respond that there is substantial evidence in the record to support the ALJs= conclusions that soil excavation 

will not increase peak water-flow rates at the site. We agree with Long Point and the Commission. 

The Commission=s expert, Michael D. Graeber, testified that excavation of soils for daily 

and intermediate cover is not a factor that the Commission specifically considers in its permitting process, 

partly because it assumes that the operator will have enough soil from its excavation of the footprint to use 

for this purpose. If for some reason there is not enough soil from the footprint area, the operator will need 

to bring in soil from elsewhere or excavate it from another area within the permitted boundary. As Mr. 

Graeber testified, because Long Point=s application information did not indicate the need to excavate outside 

of the footprint to supplement its cover reserve, it was not required to analyze the possible floodplain effects 

of such excavation. Mr. Graeber further testified that the Commission would address the issue in the future 

if necessary as part of Long Point=s operating procedures and requirements. Both Mr. Young and Mr. 

Graeber testified that soil excavation will actually reduce rather than increase peak-flow rates, by creating 

storage for water. This testimony amounts to substantial evidence to support the conclusion that Long Point 

adequately demonstrated the effects of its proposed project on flood conditions with respect to soil-cover 

operations. We overrule the Coalition=s sixth issue.
14

Drainage

Title 30, Section 330.56(f)(4)(A)(iv), of the administrative code requires an applicant to 

Ademonstrate that natural drainage patterns will not be significantly altered as a result of proposed landfill 

development.@ Id. ' 330.56(f)(4)(A)(iv). Drainage calculations for sites of Long Point=s size must be 

Acomputed by using USGS/DHT hydraulic equations . . . , the HEC-1 and HEC-2 computer programs . . . 

, or an equivalent or better method approved by the executive director.@ Id. ' 330.55(b)(5)(B). Long 

Point=s expert, Mr. Young, used the designated HEC-1 computer program in analyzing the proposed 

landfill=s effect on drainage. His analysis admittedly inflated both the natural and post-development peakflow conditions at the site, a conservative estimate to have sufficient margin for error so that design of the 

runoff control structures would be adequate. Mr. Young testified that his design, including three detention 

ponds, would actually decrease peak-flow rates from the site.

The Coalition argues that (1) the ALJs abused their discretion in admitting the testimony of 

Mr. Young because his methodology was unsound and not generally accepted; and (2) there is not 

substantial evidence to support the finding that Long Point=s proposed facility will not alter natural drainage 

because Long Point failed to establish that its methodology was valid.

Long Point and the Commission assert that the Coalition has not preserved the alleged error 

of the admission of Mr. Young=s testimony. To preserve error, a motion for rehearing must set forth: (1) the 

particular finding of fact, conclusion of law, ruling, or other action by the agency that the complaining party 

asserts was error; and (2) the legal basis upon which the claim of error rests. Central Power & Light Co. 

v. Public Util. Comm=n, 36 S.W.3d 547, 569 (Tex. App.CAustin 2000, pet. denied). The purpose of a 
15

motion for rehearing is to provide notice to the agency that the moving party is dissatisfied with its final order 

and will seek an appeal if the ruling is not changed; the motion must therefore be sufficiently definite to notify 

the agency of the error claimed in order to allow the agency the opportunity to correct it or prepare to 

defend it. Suburban Util. Corp. v. Public Util. Comm=n, 652 S.W.2d 358, 364-65 (Tex. 1983).

The Coalition did assert that the Commission=s Finding of Fact 172Cstating that Mr. 

Young=s analysis was conservative and based on reasonable methodologiesCis error because the 

methodology is neither generally acceptable nor conservative. However, the Coalition did not allege in its 

motion for rehearing that the testimony was erroneously admitted. The distinction is significant. A finding of 

fact and an evidentiary ruling are distinct components of an administrative hearing.

Although appellants are not required to assert error in motions for rehearing with the 

precision required in district court pleadings, on these facts we hold that the Coalition did not preserve its 

alleged error with respect to admission of Mr. Young=s testimony. Compare United Sav. Ass=n of Tex. v. 

Vandygriff, 594 S.W.2d 163, 170 (Tex. Civ. App.CAustin 1980, writ ref=d n.r.e.) (mere allegation in 

motion for rehearing that Commissioner failed to meet the requirements of two statutes held not sufficiently 

specific to preserve error), and Cities for Fair Util. Rates v. Public Util. Comm=n, 884 S.W.2d 540, 

545 (Tex. App.CAustin 1994), rev=d on other grounds, 924 S.W.2d 933 (Tex. 1996) (complaint in 

motion for rehearing regarding reasonableness and recovery of upgrade costs not sufficient to preserve error 

with respect to Commission=s failure to consider particular factors in determining whether to include costs in 

appellant=s rate base), with Morgan v. Employees= Ret. Sys., 872 S.W.2d 819, 822 (Tex. App.CAustin 

1994, no writ) (allegations in motion for rehearing explaining the various ways in which the agency=s findings 
16

were unsupported by the evidence is an acceptable legal objection at the agency level, despite the lack of an 

assertion that they were not supported by Asubstantial evidence@), and Central Power & Light Co., 36 

S.W.3d at 569-70 (motion for rehearing complaining of failure of agency to satisfy one subsection of a 

statute was adequate to preserve error with respect to the following subsection of the same statute, which 

necessarily incorporated and elaborated upon the previous subsection). The complaining party must set 

forth the particular finding or ruling that it claims is in error. A challenge to the reliability of an expert=s 

methodology has been linked to the legal sufficiency of the evidence. See Merrell Dow Pharm., Inc. v. 

Havner, 953 S.W.2d 706, 712-14 (Tex. 1997). We therefore construe such a complaint in the motion for 

rehearing as preserving the substantial evidence challenge but not the challenge to the admissibility of the 

evidence. Because the Coalition did not assert error relating to the admissibility of Mr. Young=s testimony in 

its motion for rehearing, it has not preserved the issue for our review.

Moreover, if we were to consider the issue of whether the ALJs abused their discretion in 

admitting Mr. Young=s testimony, we would hold that there was no abuse of discretion. An agency abuses 

its discretion in admitting or excluding evidence if it acts without reference to guiding rules and principles. 

City of Amarillo v. Railroad Comm=n, 894 S.W.2d 491, 495 (Tex. App.CAustin 1995, writ denied). To 

prevail on a point of error asserting abuse of discretion, a party must further show that any error was so 

injurious or prejudicial that it constitutes reversible error. Id.

In conducting his analysis, Mr. Young used one of the few methods pre-approved by the 

Commission: the HEC-1 computer program. He testified that his methodology utilizing the HEC-1 was one 

of the three methodologies used by hydrologists in performing drainage analyses and had been previously 
17

accepted by the Commission in similar drainage studies. He explained that the methodology he used 

employs a number of parameters that allow the user to adjust for the particular conditions of the watershed 

being studied. A publication admitted into evidence indicates that the method used by Mr. Young can be 

used in analyzing sites with the characteristics of Long Point=s site. The Commission=s staff member, Mr. 

Graeber, testified that staff does not typically review an applicant=s HEC-1 inputs, and that whether changes 

in peak-flow rates are significant are matters of engineering judgment.

Besides Mr. Young=s testimony about his methodology and analysis, a previous drainage 

study performed by an unrelated company produced peak-flow rate numbers similar to those resulting from 

Mr. Young=s calculations. Even without Mr. Young=s testimony on drainage, evidence of the previous study 

indicating similar flows to that of Mr. Young=s analysis amounts to substantial evidence to support the 

agency=s decision and precludes the finding of any reversible error. 

The Coalition also asserts that Long Point failed in its burden to provide objective, 

independent validation of Mr. Young=s methodology, citing Havner and claiming that it requires a party 

proffering evidence in the form of expert testimony to bring forth objective validation of the methodology 

used in reaching the expert=s conclusions. See Havner, 953 S.W.2d 706, 712 (Tex. 1997). The Havner

discussion to which the Coalition cites was concerned with whether an expert=s bare opinion or bald 

assurance of reliability and general acceptance without anything more was sufficient to render her 

substantive Aexpert opinions@ more than a scintilla of evidence. See id. The Court held that an expert=s 

bare opinion or bald assertion that her methodology was reliable and had general acceptance is not alone a 

sufficient indicator of scientific reliability. See id. (citing Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 
18

1311, 1316 (9th Cir. 1995) (on remand), cert. denied, 516 U.S. 869, 116 S. Ct. 189 (1995). The 

Havner court noted that reliability of expert testimony is determined by looking at numerous factors 

including those set out in Robinson. Havner, 953 S.W.2d at 712, 714; see E.I. du Pont de Nemours & 

Co. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995). If an expert=s scientific testimony is not reliable, it is 

not evidence, and it will therefore not be legally sufficient. Havner, 953 S.W.2d at 713. Similarly, the 

Coalition argues, unreliable testimony will not be sufficient, on its own, in a substantial evidence review.

However, the evidence in the record amounts to more than a bald assurance by Mr. Young 

that his methodology is valid and generally accepted. As noted above, Mr. Graeber=s testimony supports 

Mr. Young=s choice of HEC-1 inputs. A previous independent study produced numbers similar to Mr. 

Young=s. Mr. Young=s HEC-1 inputs were chosen to produce intentionally inflated pre-development and 

post-development flow rates so that Long Point could conservatively design a larger system of detention 

ponds. The ALJs were convinced by Mr. Young=s analysis and dismissed that of the Coalition=s expert, Dr. 

Bedient, which was well within their purview as the fact finders. We hold that the record contains 

substantial evidence to support the Commission=s findings and conclusion that the project will not 

significantly alter natural drainage. We overrule the Coalition=s fourth issue. 

CONCLUSION

The Commission=s decision was supported by substantial evidence. We affirm the district 

court=s judgment affirming the Commission=s order that granted to Long Point a permit to build and operate 

a municipal landfill facility.
19

 

Bea Ann Smith, Justice

Before Chief Justice Law, Justices B. A. Smith and Puryear

Affirmed

Filed: May 8, 2003