### 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. 03-14-00257- CV

Maver ick County, City of Eagle P ass, Maver ick County Hosp ital District , Maver ick County En vironm ental and Public Health Association, an d Geor ge Baxter , Appellan ts

v. Railroad Com m ission of T exas, Dos Re pub licas Coal P artner ship , Cam ino Real F uels,

LLC; and Nort h Am eric an Coal Com pany, Ap pellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 261 ST JUDICI AL DISTRICT NO. D-1 -GV-1 3-0 0041 6, H ONO RAB LE DARLENE BY RNE, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

Maver ick County , the City of Eag le Pass, Maver ick County Hospit al Di s t ri ct, Maver ick County Environmental and Public Hea lth Association (MC E P HA), and Geor g e Ba x ter
appe al t h e district court’s judgme nt aff irming the Railroad Commi ssion’s order g ranting the application of Dos Republicas Coal Partnership (DRCP) for rene wal, revision, and expansion of its surfa ce coal mining and rec lamation permit. Appellants participa ted in the contested case hear ing

as protestants ag ainst the permit and, following the g rant of the permit, filed three separ ate suits for judicial revie w that wer e consolidated. DRCP, the mine owner ; The Nor t h Am er i can Coal 1 Corporation (NACC); an d C am i n o Real Fue ls, L L C, (CRF), a subsidiary of NACC and the mine

The Kickapoo Traditional Tribe of Texas initially participa ted as a party but later withdrew. 1opera tor (collec ti v e ly I n te r v e n o r s ) , intervene d to defe nd DRCP’s permit. For the rea sons that follow,

we a ffirm the district c ourt’s judg ment.

F ACTUAL AND P ROCEDURAL BACK GR OUND
I n 1994, the Commi ssion approv e d th e a p p li c a ti o n o f D RCP’s prede cessor in interest,
Dos Republicas Resource s Company (DRRC), for a surfa ce coal mining and rec lam ati on permit.
I n 2000, the Commi ssion issued the permit. The permit was to expire in three y ear s if mining had 2 not beg un, subject to exceptions that excuse failure to be g in mining in cer tain circ umstances. See
Tex. Nat. Res. Code § 134.072. I n 2003, DRRC soug ht an ex t en s ion of the permit, and in ear ly 2004, the Commi ssion invoked an exception and rene wed the permit until April 11, 2005, which led
to litigation. I n October 2004, DRRC filed an application fo r re n ew al and revision of t he permit, but the rene wal proce ss was abate d pending resolution of the litigation on the 2004 rene wal. On April 10, 2005, one day befor e the permit was to expire, DRRC ini t i at ed co nstruction on a sedimentation pond. I n 200 7 , t h i s Court upheld the 2004 rene wal. I n 2008, DRRC filed a 3 “complete repla ceme nt” of the 2004 application and soug ht a renewa l, revision, and expansion of the permit are a. This “re place ment” was “Supplement No. 1.” I n J anuar y 2009, DRRC transfe rre d the permit to DRCP. DRCP filed five additional supplement s , s u b s tantially revising the 2008 application.

For rea sons not ref

lected in the rec ord , DR R C did not reque st that the permit be issued 2 until 2000. See Railroad Comm’n v. Coppock, 215 S.W.3d 559 (Tex. App.—Austin 2007, pet. denied)

. 3 2Publi c participa tion was initiated in J une 2011. Numerous persons contested the

permit, and a contested case hear ing was held for 19 day s betwee n J anuar y and May 2012. Following the hear ing, the hear ing examiner issued a proposal for d ec ision (PFD) , subsequently amende d,

rec ommending approva l of the permit with conditions. The Co m m i s s i o n issued its final order adopting the amende d PFD and approving the permit in J anuar y 2013. Appellants filed motions for rehe aring and motions under Commi ssion Rule 12.222 reque sting a hear ing on the rea sons fo r the decision. See 16 Tex. Admin. Code § 12.222 (Railroad Comm’n of Tex., Administrative Review). 4
The Commi ssion denied the motions for rehe aring and the motions under Commi ssion Rule 12.222. Appellants soug ht rehe aring of t he decision on their R ule 12.222 motions and were notified by the examiner that no further action would be taken. The district court upheld the Commi ssion’s or der, and this appea l followed.

STANDARD OF REVIEW

We revie w the Commi ssion’s d ec i sion under the “substantial evidenc e” standard.
See Tex. Gov’t Code § 2001.174; Railroad Comm’n of Tex. v. Torch Operating Co. , 912 S.W .2d 790,
792–93 (Tex. 1995) (apply ing substantial evidenc e standard of Administrative Procedur e Act (APA) to Commi ssion decision). This standard require s that we reve rse or rema nd a case for further
proce eding s “if subst antial rights of t he appellant have been prejudiced beca use t he adminis t ra t i v e finding s, infere nces, conclusions, or decisions are (A) in violation of a constitutional or statutory provision; (B ) i n excess of t he age ncy ’s statutory authority ; (C) made throug h unlawful procedur e;

All cites to Title 16 of the Texas Administrative Code are to rules issu ed b y t h e T ex as 4 Railroad Commissi on. 3(D) aff

ecte d by other err or of law; (E) not rea sonably supported by substantial evidenc e considering the reliable and probative evidenc e in the rec ord as a whole; or (F ) ar b i t ra ry or capr icious or char acte rized by abuse of discretion or clea rly unwar rante d exercise of discretion.” Tex. Gov’t Code § 2001.174(2). I n re v i ewing fac t-based deter minations under this standard, we may not substitut e

our judgme nt f

or that of the ag ency but rathe r must deter mine whether , considering the reliable and probative evidenc e in the rec ord as a whole, some rea sonable b as i s exis ts in the rec ord for the
ag ency ’s action. See id. § 2001.174(2)( E); Texas Indus. Energy Consumers v. CenterPoint Energy
Hous. Elec., LLC , 324 S.W .3d 95, 105 n.60 (Tex. 2010). “Thus, t h e age n cy ’s decision will be sustained if the evidenc e is such that rea sonable minds could have rea ched the conclusion the
ag ency must have rea ched in order to justify its action.” Texas Health Facilities Comm’n v. Charter Med.- Dall., Inc. , 665 S.W

. 2 d 4 4 6 , 453 (Tex. 1984). We presume that the ag ency ’s finding s, infere nces, conclusions, an d d ec isions are supported by substantial evidenc e, and the burden is on the contestant to demonstrate otherwise. See Froemming v. Texas State Bd. of Dental Exam’ rs , 380 S.W .3d 787, 790 (Tex. App.—Austin 2012, no pet.). We must affirm the ag ency ’s finding s if they are supported by more than a scintilla o f ev i d en ce . Mireles v. Texas Dep’ t of Pub. Safety , 9 S.W .3d 128, 131 (Tex. 1999) (per curia m). The parties’ issues also require us to construe applicable statutes and rules. Statutory construction is a question of l aw that we review de novo. See Railroad Comm’n v. T ex as Citi zens for a Safe Future & C l ean W ater , 336 S.W .3d 619, 624 (Tex. 2011). Our primary conce rn is the
express statutory lang uag e. See Galbraith Eng’g Consultant s, Inc. v. Pochuc ha , 290 S.W

. 3 d 8 6 3, 867 (Tex. 2009). We apply the plain meaning of the text un l es s a differ ent meaning is supplied by

4leg islative definition or is appar ent from th e context or the plain meaning leads to absurd results.

Marks v. St. Luke’s Episcopal Hosp. , 319 S.W .3d 658, 663 (Tex

. 2 0 1 0 ). “We g ener ally avoid
const ruing individual provisions of a statute in isolation from the statute as a whole[,] ” Te xa s Citi zens , 336 S.W .3d at 628, we must consider a provision’s role in the broade r statutory scheme , see 20801, Inc. v . Parker , 249 S.W .3d 392, 396 (Tex. 2008) , and we pr esume that “ the entire statute is intended to be eff

ective,” Tex. Gov’t Code § 311.021(2). We construe administrative rules in the

same manner as statutes. TGS-NOPEC Geophy sical Co. v. Combs , 340 S.W .3d 432, 438 (Tex. 2011).

DISCUSSIO N Denial of the County’s Mot ion to Com pel Disclosure The County , in its first issue, and the City and the Hospital District, in their issue I I (D) and (E), arg ue that the hear ing examiner abused her discretion in deny ing the Count y ’s motion to compel disclosure o f d o cu m en t s soug ht by the Kickapoo Tribe prior to its withdrawa l from the
proce eding

. The Kickapoo Tribe serve d DRCP with a re quest for disclosure under Rule 194 of the
Texas Rules of Civil Procedur e. See Tex. R. Civ. P. 194.2. DRCP partially responde d to the reque st, and the County moved to compel disclosure of all documents, tang ible things, repor ts, models, or data revie wed by or prepa

red by or for DRCP’s experts in anticipation of their testimo n y . S ee i d. R. 194.2( f)) (4)( A). The hear ing examiner g rante d the motion and order ed DRCP to supplement its
response s to the Kickapoo Trib e’ s request for civil proce dure Rule 194.2(f) disclosures. DRCP produce d some documents and withheld others that wer e descr ibed on a privileg e log attache d to its supplemental disclosures. The withheld documents wer e primarily communications among counsel

5for DRCP and its 13 desig nated expert witnesses, which DRCP contende d wer e protec t ed by the

attorney -client a

nd work produc t privileg es. T h e County filed a second moti on to compel, seeking disclosure of 120 of t he 1 3 7 documents listed on the privileg e log. The County arg ued that they wer e discovera ble under civil 5
proce dure Rules 192.3(e) (6) and 194.2(f) (4)( A) and the supreme court’s decision in In re Christ us Spohn Hospital Kleberg , 222 S.W .3d 434 (Tex. 2007) (orig

. proce eding ). See T ex . R. Civ. P. 192.3(e) (6) (providing that party may discover all documents, tang ible things, repor ts, models, and data compilations that have been provi ded to, revie wed by , or prepa red by or for expert in anticipation of testimony ), 194.2(f) (4) (pro v i d i n g that party may reque st disclosure of same); Christ us Spohn , 222 S.W .3d at 438 (citing civil pr ocedur e Rule 192.5(c) (1) and holding that work product privileg e does not protec t documents provided to testify ing expert). I n its response , DRCP
arg ued that Commi ssion Rule 1.81 does n o t co n t emplate civil proce dure Rule 194 reque sts for disclosure, that the ex aminer has discretion to tailor discovery , an d that communications with the experts wer e protec ted under section 2001.092 of the APA. See T ex . Gov’t Code § 2001.092 (providing for discovery of potential parties and witness e s a n d e xp e r t r e p o r ts b u t excluding discovery of communications betwee n ag ents, repr esenta tives, and employ ees of party and betwee n party and its ag ents, repr esenta tives, and employ ees) (par ty -a gen t communications); 16 Tex. Admin. Code §§ 1.81(a) (F orms and Scope of Discover y in Protested Contested Cases) (listing forms of discovery but not including reque sts for d i s closure) , 1.85 (Discove ry Orde rs) (providing that examiner may

Although the County asser ts that DRCP withheld 138 documents, and DRC P states t hat 5 it withheld 127, the privileg e log ref lects 137 withheld docume nts.

6ref

use to compel discovery for cer tain specifie d rea sons or “other g ood cause in the interest of justice”). DRCP asked the examiner to deny the C ounty ’s m otion or, i n the alter native, to re view the documents in ca

mera prior to ruling

. After a hear ing, and without revie wing the documents in came ra, the examiner issued an orde r deny

ing the County ’s motion to compel without st ating a re ason, and the County filed an interlocutory appea l of the decision. I n a memo to the Commi ssion reg arding the interl o cu t ory
appea l and in the amende d PFD, the examiner ci t ed AP A section 2001.092 as the applicable statutory provision. L ikewis e, the Commi ssion’s Conclusions of L aw Nos. 3 and 7 cite section 2001.092 as supporting its denial of the interloc utory appea l by

opera tion of law.
On appea l, Appellants arg ue that Commi ssion Rule 1.81 provides that the scope of 6 discovery in a hear ing bef ore the Commi ssion shall be the same as under the Rules of Civil Procedur e, that APA section 2001.092 does not superc ede civil proce dure Rule 194, and that under civil proce dure Rules 192.3(e) (6), 192.5, and 1 9 4 .2(f) (4)( A), documents provided to testify ing experts are not protec ted. They also arg ue that as a result of the d ec i s i o n t o deny disclosure, they

wer e deprive d of the ability to confr ont adver se witnesses and evidenc e and show the extent to which the experts’ opinions were influence d by strateg ic litigation conc erns. We construe this arg ument

as a contention that the denial of disclosure probably cause d the rendition of an improper judgme nt, thus e stablishing harm under appellate proce dure Rule 44.1(a) (1). See Tex. R. App. P. 44.1( a)( 1).

For eac h issue, the term “Appe llants” is used to ref er collectively to those appellants who 6 assert t h at i s s u e and does not ref er to any appellant that did not raise that issue. I n addition to asser ting its own seven issues, MCEPHA a nd Ba x ter a dopt by

ref ere nce the issues and brief ing of other appellants. See Tex. R. App. P. 9.7 (any party may adopt by ref ere nce all or any part of brief filed by other pa rty ). 7Rely ing on Ford Motor Company v. Castil lo , Appellants also contend that the denial prec luded them

from prese nting their case on appea l and that they have shown harm under Texas Rules of Appellate Procedur e 44.1(a) (2). See id. R. 44.1(a) (2); Castil lo , 2 7 9 S.W .3d 656, 667 (Tex. 2009) (whe n discovery is denied and evidenc e does not appea r in rec ord, it is impossibl e to determ ine harm and party is preve nted from proper ly prese nting case on appea l). Appellee s arg ue that Commi ssion Rule 1.81 does not c ontemplate reque sts f or disclosure a

nd provides that the sc ope of discove ry is

s u b je c t to th e c o n s tr a in

ts o f th e A PA , in c lu d in g s e c ti o n 2 0 0 1

. 0 9 2 , a n d th a t th e e xa mi n e r h a s d is c r e ti o n

u n d er C ommissi on Rule 1.85 to deny discovery

. I nterve nors also asser t, without explanati o n o r citation to the rec ord, that “ea ch of the ex p er t s wa s an employ ee, ag ent, or repr esenta tive of
I n t er v en ors or their subsidiaries” and that APA section 2001.092 does not require discovery o f communications with persons with that status. See Tex. Gov’t Code § 2001.092(c) (1), (2), (3)( B) , (C) (excluding from discovery written communications betwee n ag ents, repr esenta ti v es , or employ ees of party and communications betwee n party and party ’s ag ent made afte r transac tion on which contested case is based in connec tion with prosec ution, investiga tion or defe nse of contested

case ). Fur ther, appellee s contend that the g ener alized alleg ations of harm are not sufficie nt to show harm unde r appe llate proc edure Rule 44.1(a)

.

We revie w ruling s deny

ing discovery for abuse of discretion. Castil lo , 279 S.W .3d
at 661. Appellee s first arg ue that Commi ssion Rule 1.81 does not contemplate civil proce dure Rule
194 reque sts for disclosure. H oweve r, this Court has impli citly held t hat civil proce dure Rule 194
reque sts for disclosure are a permissible tool in administrative proce eding s. See Grimes v. S t a t e , No. 03-04-00154- CV, 2005 Tex. App. L EXI S 6963, at *14–15 (Tex. App.—Austin Aug

. 26, 2005,

8no pet.) (mem. op.) (holding that the Commi ssion did not err in excluding evidenc e rela ted to leg al

theory party failed to disc lose in r esponse to Rule 194 reque st f or disclosure). I n addition, prior to the dispute over its re sponses to the Kicka poo Tribe’ s reque sts, DRCP serve d its own reque sts f or disclosure on other parties, and in its response to the County ’s motion to compel, stated that t h e examiner had exercised her discretion to allow such reque sts. We cannot conclude that Commi ssion Rule 1.81 prohibited civil proce dure Rule 194 r equests for disclosure on the f

acts of this ca se. Commis s ion Rule 1.85 also g ives the examiner discretion to ref use to order discovery under cer tain circ umstances that are inapplicable in this case and “for other g ood cause in the interest of justice.” 16 Tex. Admin. Code § 1.85(b) (Discove ry Orde rs). Although the examiner’s order did not ex pressly

state any g ood cause as the basis for he r ruling , the re cord r efle cts, and the parties ag ree , that the examiner based her ruling and the Commi ssion based its denial of the County ’s interlocutory appea l on the provi s i o n of APA section 2001.092 protec ting party -ag ent communications. Commi ssion Rule 1.81 provides that d is c o v e r y , a lt houg h having the same scope as the Rules of Civil Procedur e, is nonetheless subject to the constraints of the APA. See id. § 1.81(b). The plain lang uag e of APA section 2001.092 protec ts from discovery party -ag ent communications. 7
See M arks , 319 S.W .3d at 663 (we apply plain meaning of statutory text unless differ ent meaning

We do not find section 2001.092 to be ambig uous, as the County arg ues, and there fore do 7 not consider the leg islative history , as the County urg es us to do. See Mo l i n et v. Kimbrell , 356 S.W .3d 407, 414 (Tex. 2011) (“Stateme n ts made during the leg islative proce ss by individual leg islators or even a unanimous leg islative chambe r are n o t evidenc e of the collective intent of the majorities of both leg islative ch am b ers that enac ted a statute.

. . . [T] he L eg islature expresses its intent by the words it enac ts and decla res to be the law.”) ; City of Rock wall v. Hughes , 246 S.W .3d 621, 625 (Tex. 2008) (“When a statute’s lan gu age i s clea r and unambig uous, it is inappropria te to resor

t to rules of construc tion or ext rinsic aids to construe the lang uag e.”)

. 9is supplied by leg islative definition or is appar ent from context or unles s p l ain meaning leads to

absurd results). Thus, to the ex tent the ex aminer applied APA section 2001.092(c )(1) , (2), ( 3)(B ) and (C) to protec t from discovery DRCP’s party -ag ent communications, she did not err in deny ing the motion to compel. The rec ord ref lects, and the County appea rs to conce de, that seven of the 13 experts w ere ag ents or employ ees of DRCP or one of its subsidiaries. We there fore conclude that 8 as to those experts, the examiner did not err in deny ing the County ’s motion to compel.
Howeve r, the resumés and testimony of the experts re fl ect that the rema ining

s i x experts wer e not ag ents, repr esenta tives, or employ ees of DRCP or any of its subsidiar i es b u t

wer e mere ly contra cting consultants. As noted above, I nterve nors asser t that all of the experts wer e 9
ag ents, repr esenta tives, or employ ees of I nterve nors or their subsid ia r ie s b ut offe r no explanation and

no citation to the rec ord. I n fac t, the rec ord shows that two of the rema ining six wer e self-e mploy ed and four worke d for Atkins Environmental or for Pastor, Be hling & Wheeler, eng inee ri ng and environmenta l consulting firms. Documents share d with these contra cting experts are not protec ted by the attorney -client or work product privileg es. See Tex. R. Evid. 511(a) (1); In re XL Specialty 1 0
Ins. Co. , 373 S.W

. 3 d 4 6 , 50 (Tex. 2012) (orig

. proce eding ) (par ty who voluntarily discloses privileg ed matter to third party waives privi l eg e); Christ us Spohn , 222 S.W .3d at 438. Be cause

These expert witnesses wer e A n d r e s G o n za le z- Sa

r a v ia Coss, Charles Ettinge r, Steven Kirk, 8 Peter Nielson, Corey Sadowsky , J oel Trouar t, a nd Simon Z ula. Z ula did not testify

. Although the County states only

that Z ula di d not testify , the administrative re cord doe s not include a tra nscript of Ettinge r’s testimony

. The non-employ ee expert witnesses wer e Der ek Gre en , E d ward F. J anak, J r., 9 L eonar d J . Mason, Eric Ma tzner, Patrick J . Murin, and Kirby Ty ndall. Acc ording t o t h e C o unty , those witnesses participa ted in 82 of the 120 1 0 communications soug ht. 10Commi ssion Rule 1.81(b) makes the scope of discovery the same as under the Rules of Civil

Procedur e wher e not otherwise constraine d by the APA, Rules o f C i v i l P roce dure 192.3(e) (6) and 194.2(f) (4) control as to the contra cting expert witnesses, and the examiner a b used her discretion in deny ing the County ’s motion to compel as to those witnesses. See In re Ford Mo t o r Co. , 1 1
442 S.W .3d 265, 269 (Tex

. 2 0 1 4 ) (o ri g . proce eding ) (trial court abuses its discretion if it misint erpr ets or misapplies law)

.

We turn, then, to whether the Appellants have shown the requisite harm for reve rsible

err or as to the contra cting experts. Even wher e a party has shown abuse of discretion in a discovery ruling , the complaining party must still show harm on appea l to obtain a reve rsal. See Tex. R. App.
P. 44.1(a) (no judgme nt may be revers ed u n l es s court of appea ls conclude s err or complained of probably cause d rendition of impr o p er judgme nt or probably preve nted appellant from proper ly
prese nting case to court of appea ls); Castil lo , 279 S.W .3d at 667. The County contends that under Castil lo , the very fac t that discovery was denied and the evidenc e does not appea r in the rec ord has
preve nted appellants from prese nting their case on appea l a nd establishes har

m. See Tex. R. App.

Fur ther, the examiner ruled on the motion without revie wing the documents in came ra and 1 1 appar ently without tak i n g evidenc e on the status of the expert witnesses as DRCP’s ag ents, repr esenta tives, and employ ees, which may itself constitute an abuse of discretion. See Ford Motor Co. v. Garcia , 363 S.W .3d 573, 578 (Tex. 2012) (trial court abuses its discretion by ruling without supporting evidenc e); In re E.I. DuPont de Nemours & Co. , 136 S.W .3d 218, 223 (Tex. 2004) (per curia m) (trial court abuses discretion in ref using to conduct in came ra inspection when such revie w is critica l to evalua tion of a privileg e claim); W eisel Enters., Inc. v. Curry , 718 S.W .2d 56, 58 (Tex. 1986) (orig

. proce eding ) (per curia m) (holding that trial judg e who de nies discover y in absenc e of evidenc e substantiating claim of privileg e abuses discretion, that when claim for protec tion is based on at t o rn ey -client or work product privileg e, documents themselves may be only evidenc e substantiating claim of privileg e, that listi ng o f d o cu m ents under heading of “attorne y -client” or “wor k product” was no evidenc e any particula r document was privileg ed, and that trial judge abused discovery in deny ing disc overy

without in camera

inspection). 11P. 44.1(a) (2); Casti l l o , 279 S.W .3d at 667 (whe n discovery is denied and beca use of denial does
not appe ar i n record, deter mining harm from denial is impossibl e, and party is preve nted from
proper ly prese nting case on appea l). Howeve r, the Castil lo holding is not a per se rule. See Davis

v. American Cas. Co. , No. 07-13-00190- CV, 2014 Tex. Ap p . L E XI S 6103, at *13–14 (Tex. App.—Amar illo J une 4, 2014, pet. denied ) (mem. op.) (apply ing Castil lo harm rule but declining
to find harm from failure to rule on motion to compel discovery ); In re E.G.S. , No. 11-12-00288- CV,
2014 Tex. App. L EXI S 213, at *4, 6–7 (Tex. App.—Eastland J an. 9, 2014, no pet.) (mem. op.) (same

as to denial of motion to compel); In re Commitment of W eissinger , No. 09-12-00486- CV,
2013 Tex. App. L EXI S 7819, at *10 (Tex. App.—B eaumont J une 27, 2013, pet. denied) (mem. op.) (distinguishing Castil lo and declining to apply Castil lo as “per se rule”); In re Commitment of Bunn , No. 09-12-00349- CV, 2013 Tex. App. L EXI S 13502, at *2, 4 (T ex . Ap p.—Be aumont October 31, 2013, no pet.) (mem. op.) (same)

. Although it is mo re d i ff i cu l t to prove harm in the absenc e of reque sted discovery , to construe the T ex as Supreme Court’s application of appellate
proce dure Rule 44.1(a) in Castil lo as a per se rule would lead to the result that ever y ruling deny ing discovery would be re versible e rror . I n Castil lo , For d ag ree d to settle Castillo’s claims during trial afte r the presiding juror
sent a note t o t h e co u rt as k i ng the maxi mum amount that could be awa rded. 279 S.W .3d at 659. After interviewing the jurors and lear ning that they had decide d the first liability question in For d’s favor and that the presiding juror sent the question without the knowledg e of some jurors and over the objection of others, For d did not fund the settlement. Id. at 659–60. Castillo filed a motion for
summary judgme nt for breac h of contract, and For d soug h t t o conduct discovery to deter mine the

12motivation of t he presiding juror and any outside influence that may have sway ed her. Id. at 660.

The trial court gra

nted t he sum mary judgme nt without allowing For d to conduct discove ry . Id. at 661. The court of appea ls aff irmed, holding that any err or was harmless beca use For d had ultimately conducte d its own investiga tion. Id. The supreme court reve rsed, concluding that the lack of direc t evidenc e about whether the presiding juror wa s subjected to outside influenc e proba bly preve nted
For d from proper ly prese nting its case on appea l. Id. at 667. Thus, in Castil lo , For d was prec luded from conducting any discovery at all on the sole issue being adjudicate d by summary judgme nt. Id. ;

see Joki v. Springer , No. 1 0 -1 4 -0 0 154-CV, 2014 Tex. App. L EXI S 12353, at *3–5 (Tex. App.—Waco Nov. 13, 2014, no pet.) (mem. op.) (trial court’ s ab u s e o f discretion in g ranting
summary judgme nt on brea ch of contra ct action wit hout first permitting any discovery was harmful e rror ).
Her e, Appella n t s we re n ot prec luded from conducting any discovery at all on the dispo s i t ive issues. DRCP produce d numerous documents in response to the very reque st for disclosure a t issue. I n addition, the record r efle cts that Appellants obtained doc uments and cr ossexamined the expe rt s at leng th conce rning the substantive issues forming the basis of their opposition t o the per

mit application. The discover y at i ssue here does not go to those issues—the hear t of their opposition to the permit—and thus has not preve nted them from prese nting their case

on appea l. Cf. Castil lo , 279 S.W .3d at 667; Joki , 2014 Tex. App. L EXI S 12353, at *3–5. Fur ther, althoug h the County complains that it should not have had to depose all 13 experts, oral depositions of nonparties are permissible under Com m i s s i o n R u l e 1.81, and there is nothing in the rec ord to indicate appellants wer e prec luded from taking depositions of the experts. See 16 Tex. Admin. Code

13§ 1.81(a) (1). There fore , Appellants had available alterna te means of discovery that th ey d i d n ot

pursue. See In re W

eissinger , 2013 Tex. App. L EXI S 7819, at *11 (u n l i ke situation in Castil lo , proposed reque sts for admis s i on wer e in rec ord, appellant was allowed to conduct discovery by other means, and any err or i n g ranting protec tive order was harmless); s ee a l s o El-Ali v. Stat e , 388 S.W .3d 890, 895 (Tex. App.—Houston [14t h Dist.] 2012, pet. denied) (distinguishing Castil lo

on g round appellant was not wholly prohibited from conducting discovery ). Thus, Appellants have not shown harm under

appellate proce dure Rule 44.2( a)( 2).
Nor have Appellants shown how the examiner’s ref usal to compel d is c losure resulted in harm within the meaning of Rule 44.1(a) (1 ). T h ey ar gu e that the ruling prec luded them from eff ectively confr onting adver se witnesses and questioning the experts about how “strate g ic litigation considerations” may have influence d their opinions—that is, “ex plor[ing] the extent to which the experts’ opinions have been colore d by interac tions wi th leg al counsel or the cautions of other authorities with more litigation experience .” We rec og nize that when the County attempted to question the first called expert conce rning docum en t s l isted on the privileg e log, the examiner sustained DRCP’s objections to that line of quest i o n i ng and that subsequent questioning of the experts about emails listed on the privi leg e log, s ome of which appear ed to ref lect pre para tion for the hear ing, y ielded littl e information and was ult i m at ely stopped when the examiner sustained
DRCP’s objections. Howeve r, the rec ord shows that the Co u n t y q u es t i oned only three expert witnesses about the communications and asked only if they rec alled exchang ing e mails w ith other experts or counsel and if they rec alled the content of the emails themselves or their attachme nts

14while none of the other Appellants asked any such questions at all. No ne of them posed direc t 1 2 questions conce rning how the witnesses prepa red for testimony , other than inquiring about specific nonprivileg ed documents they prepa red or revie wed , o r co ncer ning any strateg ic litigation considerations that may have influence d their opinions. I n other words, they did not ask the extent
to which they had share d their opinions with other experts or whether their opinions had been 1 3
influence d by statements of other experts or sug g estions from counsel, the questions they now claim they wer e pre cluded f

rom asking

—the basis for the ir alleg ed har m. Appellants have failed to show how the examiner’s re fusal to compel disclosure of the communications prec luded them from asking these direc t que stions or how the answe rs would have made a differ enc e i n t h e o u tcome. See In re E.G.S. , 2014 Tex. App. L EXI S 213, at *6–7 (holding denial of discovery of financ ial documents harmless wh er e appellant failed to establish what additional information would have shown). Unlike in a jury trial, wher e juries see experts as “objec tiv e authority fig ure[s]” and “are prone to rely on them to tell them how t o decide complex issues,” see Christ us Spohn , 222 S.W .3d at 440, i n this contested case hear ing an experience d hear ing examiner with particula r expertise in t h e subject matter was the trier of fac t. A hear ing examiner is less likely than a jury to be inappropria tely sway ed by expert testimony or by evidenc e that counsel has assisted in prepa ration for testimony

. Thus, Appellants h ave not established that the ruling probably cause d an improper judgme nt. See Guniganti v. C & S Components Co. , 467

As noted above , the re cord doe s not contain a tra nscript of Etting er’ s testimony

. 1 2
T h e C o u n t y did ask one witness if he had discussed an exhibi t he prepa red with other 1 3 experts or counsel, but when he answe red y es as to cer tain specific s of the exhibi t, the County moved immediately

into questions concer

ning e mails and attac hments.

15S.W .3d 661, 665 (Tex. App.—Houston [14t h Dist.] 2015, no pet.) (holding that ruling that kept issue

from jury , alone, was insufficient to demonstrate such err or probably cause d rendition of improper judgme nt); Davis , 2014 Tex. App. L EXI S 6103, at *13–14 (finding no harmful err or wher e appellant failed to show how de nial of discover y met appellate proce dure Rule 44.1 standard or how de nied discovery would have be en suff

icient to meet summary

judgme nt burden).
We revie w the entire rec ord to deter mine whether err or has cause d harm. Discove ry Operating, Inc. v. BP Am. Prod. Co. , 311 S.W .3d 140, 165 (Tex. App.—Eastland 2010, pet. denied) (citing Interstate Northborough P’ ship v

. State , 66 S.W .3d 213, 220 (Tex. 2001)). Review ing the entire r ecor d here , althoug h it is a close call, we cannot conclude that Appellants have shown that they wer e harme d by the examiner’s ref usal to compel disclosure of the reque sted documents. See Glattly v. Air Starter Components, Inc. , 332 S.W .3d 620, 645 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (finding n o reve rsible err or wher e appellant identified no harm suffe red as result of denial of discovery

). We overr

ule the County ’s first issue and the City ’s and the Hospital District’s issue I I (D) a

nd (E).

Refusal to In voke “the Rule”

I n its second issue, the County arg ues that the examiner err ed in re fusing to invoke the Rule as to DRCP’s experts. The City and the Hospital District asser t the same arg ument in their issue I I (B ). “The Rule,” embodied in Texas Rule of Civil P ro ce dure 267 and Texas Rule of Evidence 614, provides that, at the reque st of a party , the trial court must order witnesses excluded from the courtroom so they cannot hear other witnesses’ testimony

. Among those excepted from the Rule are witnesses a party shows to be essentia l t o t h e p rese ntation of the case . See Tex. R. Civ.

16P. 267(b); Tex. R. Evid. 614(c)

. The burden rests wi th the party seeking to exempt an expert

witness from ex clusion to establish that the wit ness’s presence i s es s en tial. Drilex Sys. v. Flores , 1 S.W .3d 112, 117 (Tex. 1999). Howeve r, this burden is minimal. See Burrhus v. M& S Supply, Inc. , 933 S.W .2d 635, 643 n.7 (Tex. App.—San Antonio 1996, writ denied)

. MCEPHA moved to invoke the Rule, and DRCP objected. DRCP arg ued that its experts wer e neede d to help counsel deter mine if there wer e other issues that neede d to be put on the record and to prepa re for and conduct cross examination. DRCP also arg ued that it was not nece ssary to exclude the ex p erts beca use their opinions wer e stated in the application and if they varie d from their previously stated opinions, they would be subject to impeachme nt. The examiner denied the motion to invoke the Rule as to all witnesses and a llowed DRCP’s ex perts to re main and hea r the testimony

of other w itnesses. Appellants arg ue that DRCP failed to make the showing n ec essar y under civil
proce dure Rule 267 and evidenc e Rule 614 that the prese nce of the experts was essential. Rely ing

on Drilex for the proposition that experts are not automatically excluded, see 1 S.W .3d at 118, they contend the requisite showing under Rules 267 and 614 require s more than arg ument by counsel.
Howeve r, as the Texas Supreme Court in Drilex observe d, “an expert witness may typically be found exempt,” and Rules 267 and 614 “vest in trial judge s broad discretion to deter mine whether a witness is essential.” 1 S.W .3d at 118–19. Drilex offer ed no evide nce or arg ument that its ex pert witness

was essential to the prese ntation of its case ; it m ere ly asser ted that experts are exempt per se. Id.
at 119. The court noted that “cour ts have held that expert witnesses expected to testify in an expert
capa city onl y , an d n o t to the fac ts of the case , should ty pically be exempt so that they can form opinions based on more acc urate fac tual assumptions” bu t held that nothing in Rules 614 or 267

17sug g ests that all expert witnesses qualify for exemption. Id. at 118 & n.4. I n contra st, DRCP offe red

arg ument that the experts’ prese nce was nece ssary to assist counsel in prese nting t h e ca s e and examine witnesses and further pointed out that their opinions wer e fix ed in t h e application, subjecting them to impeachment should their testimony differ

. The decision whether to permit th e ex pert witnesses to rema in was within the d is c r e ti o n o f th e e xa

mi n e r . S e e id

. a t 1 1 8

– 1 9 ; W

il le t v
. Co le , 2 4 9 S. W. 3 d 5 8 5 , 5 9 0 ( T e x. A p p . — Wa c o 2008, no pet.); see also Morvant v. Const r u ct i o n Aggregates Corp. , 570 F.2d 626, 630 (6th Cir. 1978) (apply ing Fede ral Rul e of Evidence 615 and holdi ng that “whe re a party seeks to except an expert witness from exclusion under Rule 615 on the basis that he needs to hear fi rs t h an d the testimony of the witnesses, the decision whether to permit him to rema in is wi t h i n t h e discretion of the trial judge , and should not normally be disturbed on ap p ea l ”)

. On this rec ord, we cannot conclude that the examiner abused her discretion in d ec l ining to invoke the Rule. See Morvant , 570 F.2d a t 630; Drilex , 1 S.W .3d at 118–19.

Fur ther, even if we wer e to conclude that the ex ami ner abused her discretion, Appellants have shown no harm. See Tex. R. App. P

. 44.1 (a)

. They arg ue that their due proce ss rig hts wer e prejudice d, in particula r their rig hts to a fair adjudication and to conduct eff ective crossexamination. Howeve r, the experts testified solely as to their opinions based on the fac ts and data

1 4
prese nt in the case . They wer e not f act witnesses whose r ecollec tions mi g ht have be en color ed by

I n al l of their rema ining issues, Appellants asser t that their due proce ss rig hts were 1 4 violated. Be cause municipalities do not enjoy such rig hts, see City of Port Arthur v. Southwestern Bell Tel. Co. , 1 3 S.W .3d 841, 845 (Tex. App.—Austin 2000, no pet.) (citing Proctor v. Andrews , 972 S.W .2d 729, 734 (Tex. 1998)), we addre ss the due proce ss arg uments only as to the other a ppellants. 18acc ounts of prior witnesses. I n fac t, as not ed above, t heir opini ons had bee n previously prese nted

as contained in the application, and any deviations would subject t h em t o cr o ss-examination and impeachme nt. The purpose of the Rule is to minimi ze witnesses’ tailoring thei r t es t i mony in
response to that of other witnesses and to preve nt collusion among witnesses testify ing for the same side. Drilex , 1 S.W .3d at 116. Appellants have not shown how h ea ri n g t h e testimony of other experts influence d or chang ed any of t he ex perts’ opinions o r allowed collusion among them; nor have they cited any testimony that differ ed from opinions stated in the application or that otherwise prejudice d them. Fur

ther, they wer e able to cross ex amine the experts extensively , with acc ess t o their pre viously

produce d repor

ts. The ref

ore, Appellants have failed to e stablish that the outcome of t he hearing would have been differe nt had the ex perts bee n excluded or that they are preve nted from prese nting their case on appea l. Acc ording ly , even wer e we to find err or, we would conclude that they have not shown any prejudice

. See Tex. R. App. P. 44.1(a) ; Mayo v. Tri-Bell Indus., Inc. , 787 F.2d 1007, 1013 (5th Cir. 1986) (finding no prejudice from exemption for the Rule for experts who testified only as to their opinions based on fac ts and data and who would not be influence d by fac t witnesses). We overr ule the County ’s second i s s u e and the City ’s and Hospital District’s issue I I (B ).

Denial of Com m ission Rule 12.222 Hearing
I n the County ’s third issue, the City ’s and Hospital Di s t ri ct ’s issue I I (F ), and
MCEPHA’s and Bax t er ’s s ec ond issue, Appellants arg ue that the Commi ssion err ed in failing to
g rant an administrative revie w hear ing pursuant to Commi ssion Rule 12.222. See 16 Tex. Admin. Code § 12.222 (Administrative Review). Commi ssion Rule 12.222 provides that “[w]i thin 30 day s
19afte r the applicant or permittee is notified of the final decision of the Commi ssion

. . . , the applicant,

permittee, or any person with an interest which is or may be adver sely aff ecte d may reque st a hear ing

on the rea sons for the final decision in acc ordanc e with this section.” Id. Rule 12.222 also provides that the hear ing shall beg in within 30 day s of the reque st and be of rec ord and adjudicator y in nature and that the examiner from any previous hear ing shall not pr eside. See id. § 12.222(1). A hear ing under Rule12.222 is to be a full evidentiar y hear ing. See id. § 12.222(3). Following the i ssuance of the Comm i s s i o n ’s order , appellants filed motions for rehe aring and motions for hear ing under Commi ssion Rule 12.222. The Commi ssion deter mined that the motions under Rule 12.222 should be tre ated a s motions for rehe aring and denie d all motions.

Appellants arg ue that Commi ssion Rule 12.222 cre ates a rig ht to a post-decision revie w hear ing and that Commi ssion Rul e 12.223 make s participation in the hear ing a requisite to
appea l. See id. §§ 12.222, .223 (Judi cial Review) (any applicant o r p erson with interest and who participa ted in administrative proce eding s shall have rig ht to appea l). They contend that the fede ral
g overnme nt—which has deleg ated its ex clusive authority over sur fac e mining to the sta te, subject
to the state’s opera ting the prog ram in acc ordanc e with fe d er al l aw —require d Commi ssion Rule 12.222, the state acquie sced, and for the state to cre ate an exception or disreg ard its own unambig uous rule is arbitra ry and capr icious. Appellants further contend that the Commi ssi o n’s deter mination that Rule 12.222 conflicts with the APA rende rs t h e ru l e m eaning less and that a hear ing under the rule can be conducte d within the time fra me for a ruling on a motion for rehe aring

. Moreove r, they arg

ue, Rule 12.222 contemplates the possibili ty of a sec o n d h ea ri n g beca use it prohibits an “examiner fr om any previous hea

ring on this matter” fr om presiding

.

20Reg ulation of surfa ce coal mining and rec lamation opera tions is vested in the fede ral

g overnme nt, which has deleg ated its exclusive authority to states t h at wish to assume exclusive jurisdiction. See 30 U.S.C. § 1253. A state’s prog ram must be approve d as being no less stringe nt

or eff ective than the minimum require ments of the fede ral Surfac e Mining Control and Reclama tion Act (SMR CA). See id. I n 1979, Texas decla red its desire to assume ex clusive j urisdi ct i o n u n der
SMRC A in enac ting the Texas Surfac e Mining Control and Reclama tion Act (TSMRCA), see Tex.
Nat. Res. Code §§ 134.002(5), .011(14), and the fede ral Offic e of Surfac e Mining and Reclama tion and Enfor ceme nt, I nterior (OSM) approve d the progra m, see 45 Fe d. Reg . 12,998 (F eb. 27, 1980) (codifie d at 30 C.F.R. pt. 943). I n 1993, the Commi ssion proposed amendments to its prog ram that included deleting what are now sections 12.222 and 12. 2 23 of the TSMRC A and repla cing them with

a provision that appea l and revie w of Commi ssion actions would be g overne d b y the APA. See
62 Fe d. Reg

. 14,311 (Mar

. 26, 1997) (codifie d at 30 C.F.R. pt. 943). OSM notified the Commi ssion of conce rns with its proposed chang es to administrative proce dures—c oncer ns that the amendments

wer e less stringe nt than corr esponding fede ral re gu l at i o n s . See id. at 14,312. The Commi ssion revised its proposed amendments, withdrawing the proposed chang es to administrative proce dures, and OSM approve d the amendments. See 62 Fe d. Reg

. 14,311, 32,687 (June 17, 1997) (codifie d at 30 C.F.R. pt. 943) (cor

rec ting e ffe ctive date ). Commi ssion Rule 12.222 trac ks much of the lang uag e of the corr esponding fede ral
reg ulation in providing for a post-decision hear ing. See 30 C.F.R. 775.11. Section 775.11 provides that within 30 day s afte r notification of a decision, an interested person may reque st a hear ing on the

re asons for a decision on a permit application. See id. § 775.11(a)

. I t further prov i d es t h at

21administrative hear ings under state prog rams shall beg in within 30 day s afte r the reque st, be

adjudicator

y in nature , and be on the rec ord, see id. § 775.11(b), and allows for discovery , evidenc e, and witnesses, see id. § 775.11(b)( 3). Howe ver, the fede ral proc edure contemplates a decision by the reg ulatory authority afte r only wr i t t en co m ments and objections or, at most, an informal confe renc e, and befor e any adjudicator y hear ing. See id. §§ 773.6 (providing for public participa tion throug h informal confe renc e by any person who may be aff ecte d by decision on permit application),
.7 (providing reg ulatory authority will revie w application, written comments an d o b jections, and

rec ords of any informal confe renc e within rea sonable time or within 60 day s of informal confe renc e if one is held), 775.11 (providing that within 30 day s of decision in t er es t ed person may reque st hear ing on r easons) , 775.11(b) ( providing that no person who presided at the informal conference shall preside at the hear ing on the decision). The fede ral proce dure there fore also contemplates that the post-dec ision hearing is the only full evidentiary

hear ing.
I n contra st, the TSMR C A provides that chapte r 2001 of the APA g overns permit applications and hear ings except as provided in section 134.062

. S ee Tex. Nat. Res. Code §§ 134.011(3) ( g ranting Commi ssion authority to conduct hea

ring s under chapter 134 and sec tion 2001), .013(b) (providing that proce ss of i ssuing permits is subject t o chapte r 2001), .062 (setting
out require ments rela ting to reque st for public hear ing and notice), .064 (providing that chapte r 2001 applies to permit applications under act ex ce p t as to notice and hear ing, which are g overne d by section 134.062). The APA provides for notice and the opportunity to participa te in a contested case hear ing with t h e ri gh t t o conduct discovery and to prese nt evidenc e and witnesses. See generally
Tex. Gov’t Code §§ 2001.051

– . 1 03. Following the contested case hear ing, the ag ency rende rs a

22decisi o n . S ee g enerally id. §§ 2001.141–.147. Thus, prior to a Commi ssion decision, interested
persons a re a ffor ded a f

ull evidentiary

hear ing.
We believe that to require a full evidentiar y hear ing under Commi ssion Rule 12.222 following a contested case hear ing under the APA would be an ab s u rd result. See Marks , 319
S.W .3d at 663. Appellants arg ue on appea l that Rule 12.222 applies and that, under Comm ission Rule 12.223, seeking a Rule 12.222 hear ing is an ex h aust ion require ment for judicial revie w. Howeve r, the County arg ued befor e the examiner that Commi ssion Rule 12. 2 2 2 applies only in those situations in which no protestant had reque sted a contested case hear ing and conditi oned it s
reque st for a Rule 12.222 hear ing on the Commi ssion’s deter mination that such a reque st was an appellate requisite. Simi larly , the ot her A ppellants noted t hat t he C ommissi on does not g ener ally consider a Rule 12.222 reque st f or hear ing to be a nec essar y prer equisite to appea l a

nd posited the theory that Rule 12.222 is “simply a vestig e of provisions in the fede ral laws pursuant to which the Commi ssion was deleg ated authority over surfa ce mining in Texas, and that this provision has been
superc eded by the APA.” And all Appellants observe d that under TSMRC A section 134.064, APA chapte r 2001 g overns and that Commi ssion Rule 1 2

. 2 2 2 contains “additional provisions

. . . for a subsequent hea

ring .”
An administrative rule may not impose additional burdens, conditions, or restric tions in excess of or inconsistent with rele vant statutory provisions. Ha r l i n g en Family Dentistry, P.C.

v. Texas Health & Human Servs. Comm’n , 452 S.W .3d 479, 486 (Tex. App.—Austin 2014, pet. dism’d). Fur

ther, “ [a] n ag ency

can a dopt only

such rules as are authoriz ed by and consistent with its statutory authority .” Railroad Comm’n of Tex. v. Lone Star Gas Co. , 844 S.W .2d 679, 685 (Tex.

231992). To interpre t Rule 12.222 as requiring an evidentiar y hear ing here would impose the additional burden of a second full evidentiar y hear ing, see Harlingen Family Dentistry , 452 S.W .3d at 486, and be inconsistent with the provisions of the TSMRC A and the APA that provide for a full evidentiar y hear ing prior to an ag ency decision as opposed to afte r a decision as in the fede ral scheme , see Tex. Gov’t Code § 311.021(2) (we presume entire statute is intended to be eff ective) ; Texas C i t i

z en s , 336 S.W .3d at 628 (we avoid construing provisions of statute in isolation); 20801, Inc. , 249 S.W .3d
at 396 (we consider provision’s role in the broade r statutory scheme ). I t would also be inconsistent with the fede ral reg ulations that contemplate only one full evidentiar y hear ing, if reque sted, afte r an
ag ency decision based on the application, comments, and objections. Although OSM r equire d the Commi ssion to reta in Rules 12.222 and 12.223, the fede ral ag ency acknow ledg ed that reg ulation of surfa ce coal mining and rec lamation opera tions was under the APA when it ap p ro ved the state
prog ram. See 45 Fe d. Reg

. 12,998, 12,999. On these fac ts, we cannot conclude that the Commi ssion

err ed in trea ting the Rule 12.222 motions as mo t i o n s for rehe aring —as it did on the only prior

occa sion when fac ed with such a motion—and declining to g rant appellants a second full evidentiar y hear ing unde r Rule 12.222.

Even if w e w e r e to c o n c lude that the Commi ssion decision was err or, Appellants have shown no harm. See Tex. R. App. P . 44.1(a) . They have a sserted tha t the decision depr ived them of due proce ss but, having offe red no discussion or analy sis on this a rg ument, have waived it. See id. R. 38.1(i). Even if they had not waived the arg ument, Appellants wer e aff orded a full evidentiar

y hear ing, and “d u e p roce ss require s but one adequate hear ing in administrative proce eding s.” Browning-Ferris, Inc. v. Johnson , 644 S.W .2d 123, 127 (Tex. App.—Austin 1982, writ ref ’d n.r.e.)

.

24Fur

ther, Appellants s imply incorpora ted by ref

ere nce into their letter reque sts for Rule 12.222 hear ings the arg uments asser ted in their motions for rehe aring , which wer e ruled on separ ately , and thus the y wer e not de nied a post-decision hear ing on those issues. We overr ule the County ’s third issue, the City ’s and Hospital District’s issue I I (F ), and MCEPHA’s a nd Ba x ter’s se cond issue.

Allocation of B urden of P roof The City and Hospital District in their issue I I (A) and MCEPHA and Ba x ter in their first issue, arg ue that the Commi ssion’s final order violates sections 1 3 4

. 0 7 2 and 134.075 of the
TSMRC A and improperly shifted the burden of proof. See Tex. Na t. Re s. Code §§ 134.072, .075. Section 134.072 provides that a permit terminates if the holder has not be g un surfa ce c oal mining
opera tions on or befor e the third anniver sary of the date on which the permit period beg ins. See id. § 134.072(a)

. Section 134.075 provides that when a p er m it holder applies for rene wal, the Commi ssion sha ll r enew it unless opponents establish cer tain fac ts. See id. § 134.075(b); see also
16 Tex. Admin. Code §§ 12. 227(a) (Permit Renewa ls: Gene ral Requirements) (v al i d , exis ting permit shall car

ry with i t ri gh t of succe ssive rene wal), .230(a) (Permit Renewa ls: Approva l or Denial) (upon com

p letion of application and all require d proce dures Commi ssion shall rene w permit unless cer

tain finding s are made)

. Appellants contend that DRCP had not beg un coal mining
opera tions as define d by the TSMRC A, making the application a n ew application rathe r than a

rene wal. See Tex. Nat. Res. Code § 134.004(20) ( defining surfa ce coal mining opera tions). They further contend t h at t he 2008 application “complete ly repla ced” the 2004 application and soug ht revisions and expansion not cont em p l ated by section 134.075. See id. §§ 134.076 (extension of permit must be made by application for another permit), .079 (per mit holder may submit application

25for permit revision). Be cause section 134.075 place s the burden of proof on opponents of rene wal,

while under section 134.066(a) the burden is on an applicant for a new permit, Appellants arg ue that the hear ing examiner and Co m m ission improperly shifted the burden of proof by trea ting the application as a rene wal. See id. §§ 134 .066(a) (re quiring applicant to meet six conditions for
approva l of permit), .075. Consequently , they contend, the final order also violates C o m m i s s ion Rule 12.216, whi ch re q u ires that an application be complete and comply with the TSMRC A and Commi ssion rules. See 16 Tex. Admin. Code § 12.216(1) (Criteria for Permit Approva l or Denial)

.

Section 134.004(20) de fines “sur fac e coa l mining oper ations” as:
(A) activities conducte d on the surfa ce of land in connec tion with a surfa ce coal mine or subject to the require ments of Section 134.015 incidental to an underg round coal mine , in c lu d in g e xc avation for the purpose of obtaining coal, including such common methods as contour, strip, aug er, mountaintop remova l, box cut, open pit, and are a mining, the use of explos ives and blastin g, an d in situ distil lation or retorting , leac hing or other chemical or phy sical processing , and the c leaning , conce ntrating , or other proce ssing or prepa ration, loading of coal at or near the mine site; excluding the extraction of coal incidental to the ex t ra ct ion of other minerals wher e the coal does not exceed 1 6 2/3 perc ent of the total tonnag e of coal and other minerals remove d annually for purposes of commerc ial use or sale or coal explorations subject to this chapter; and (B ) the are as on which those activities occur or where t hose activities disturb the natura l land su rf

ace , are as adjac ent to land the use of which is incidental to any of tho s e ac t i vities, all land aff ecte d by the construction of new roads or the improvement or use of exis ting roads to g ain acc ess to the site of those activities and for haulag e, and excavations, wo rk i n g s, impoundments, dams, ventilation shafts, entry way s, ref use banks, dumps, stockpiles, overbur den piles, spoil b an k s , culm banks, tai l i n gs , holes or depre ssions, repa ir are as, storag e are as, proce ssing are as, shipping are as, an d o t her are as on which are sited structure s, fac iliti es, or other proper ty or mater ials on the surfa ce, r esulting f rom or incident to those a ctivities.

26Tex. Na t

. Res. Code § 134.004(20). I t is undisputed that DRCP had beg un construction of a

sedimentation pond; fenc ing; perf ormanc e of arc heolog ical studies; and monitoring , c o ring , drilling, and inspection of surfa ce and g roundwa ter, but the parties join issue on wh et h er t h ese activities constitute “surf

ac e co al mining opera tions.” We are unpersua ded by MCEPHA’s and Ba x ter’s
arg ument that to constitute surfa ce coal mining opera tions, the opera tions must be incidental to the
actua l extraction of coal. Rather, befor e listi ng examples of what may constitute surfa ce coal mining
opera tions, section 134.004(20) broadly define s such opera tions as “ac tiviti es . . . in connec tion with

a surfa ce coal mine or subject to the require ments of Section 134.015 incidental to an underg round coal min e. ” Id. We conclude that DRCP’s activities, though limit ed, are “in connec tion with a surfa ce coal mine” within the meaning of section 134.004(20) and opera ted to prec lude termination of the pe rmit pursuant to section 134.072 for f ailure to be g in opera tions.
We are simil ar l y u n p ersua ded by Appellants’ arg uments that the permit was not a

rene wal beca

use Supplement No. 1 “complete ly repla ced” the 2004 application. Whil e the examiner ref err ed to Supplement N o. 1 as a complete repla ceme nt of the 2004 rene wal/re vision application, she also stated that it “is now char acte rized a rene wal/re vision/ex pansion.” Testimony ref lects that the application “consists of the orig inal application, filed in 2004, and six supplem en t s , t h e fi rst being filed in 2008.” Fur ther, the rec ord ref

lects that while portions of the ap p l i ca tion soug ht revisions and expansion, other portions soug ht to rene w the exis ting permit. On t h i s record, we
cannot conclude that the hear ing examiner abused her discretion in t reating the application as an application for

a per mit renewa l/revision/ex pansion.

27Fur th er , t h e h ear ing examiner imposed differ ent burdens of proof for the rene wal portion and the revision/expansion portion. Orde r No. 9 stated: “At the pre- hear ing confe renc e, the examiner confirme d that the burden of proof is on parties opposing rene wal of the application. The examiner further confirms that the burden of proof is on the applicant for new proposals.” Simi larly , the amende d PFD ref

lects that the examiner distinguished betwee n t h e s tatutory provisions and burdens o f proof applicable to “[t] he portions of t he permit proposing rene wal of opera tions” and those applicable to “oper ations that are newly proposed or are revisions.” Thus, the hear ing examiner place d the burde n of proof on Appellants with r espec t to the portion of the a pplication conce rning

rene wal issues and on DRCP with respe ct to the portion of the application conce rning revision and expansion issues in ac co rd an ce with the TSMRC A. See id. §§ 134.066(a) , .075(b), .079, .080 (Commissi on may not approve permit revision unless rec lamation as require d u n der Act can be

acc omplished), .081 (re quiring Commi ssion to establish g uidelines for permit revisions); see also
1 6 T ex . Admin. Code §§ 226 (Permit Revisions) (setting out require ment for permit revisions), .227(a) , .230(a)

. We conclude that the examiner did not improperly shift the burden of proof. Nor do we ag ree that t h e C o m m i s s i on’s final order , which adopted the examiner’s PFD but did not specify the applicable burdens of proof, improperly shifted the burden of proof. We ove rrule the 1 5 City ’s and Hospital District’s issue I I (A) a nd MCEPHA’s and B axter’s first issue.

Appellants asser

t that by finding that DRCP had beg un mining opera tions and improperly 1 5 shifting the burden of proof, the final order violated their due proce ss rig hts. Howeve r, they fail to prese nt any discussion or analy sis to support this contention and have there fore waived it. See Tex. R. App. P. 38.1(i). Even if they had not waived this arg ument, having conclude d that the examiner did not improperly shift the burden of proof, we would further conclude that the final order did not violate Appellants’ due proce ss rig hts on that basis. 28Consolid ated Re cord The City and the Hospital District, in their issue I I (C), and the County , as part of its fourth issue, contend that the hear ing examiner’s ref usal to require DRCP to provide a “consolidate d

rec ord” violated the Administrative Code, the Rules of Civil Procedur e, and their due proce ss rig hts.
Howeve r, the City and the Hospital District have offe red no arg ument or analy sis on this issue and have there fore waived it. See Tex. R. App. P. 38.1(i). The g ist of the County ’s arg ument is that the
repe ated supplementations to the a p p li c ation, requiring the parties to work with 22 binders over more than seven y ear s and distinguish betwee n live and superc eded portions, led to confusion, even on the part of the examiner. The County points out that the amende d PFD deleted approva l of a temporar y road desig n beca

use it had been eliminated from the app l i ca tion. At a preliminary hear ing, the
C o u n t y moved that DRCP be require d to provide a consolidated rec ord so that the partie s co u l d quickly and reliably find materia ls during trial. C o u n sel for DRCP arg ued that eliminating the hi s tory of the application and supplements would actua lly make the application less clea r. The hear ing examiner acknow ledg ed that in some case s Com mi s s io n s ta f

f had asked applicants to repla ce sections of applications that had become unwieldy and difficult to revie w but stated that repla ceme nt is g ener ally “neve r require d” and d ec l i n ed t o order DRCP to repla ce all or part of its application.
C o u n s el for DRCP explained how to navig ate the application, and the examiner instructed Commi ssion staff to assis t t h e parties in identify ing live portions of the application during the hear ing. The County cites no statutory or reg ulatory provisions alleg edly violated by the lack of a consolidated rec ord, arg uing only that the confusion and burden o f t h e re co rd violated

29Appellants’ due proce ss rig hts. I nterve nors and the Commi ssion co n t en d that Appellants have

identified no leg ally

cog nizable harm fr om the examiner’s dec ision other than a leve l of difficulty that is to be expected in a complex permitti ng proce eding , that Appellants wer e able to pa rticipate in a full and fair hear ing and ref er to the application as neede d, and that t h e ex aminer’ s decision
not to require a consolidated rec ord di d not deprive them of d u e proce ss. Ba sed on our review of the rec o rd , we agr ee. We overr ule the City ’s and Hospital District’s issue I I C) and the County ’s fourth issue as to a

consolidated re cord. 1 6

P roposed Sedime ntation Ponds

I n their is sue I I I (A), the City and the Hospital District contend that the final order violates Commi ssion Rule 12.148 reg arding p lans for proposed sedimentation ponds and,
consequen t l y , Rule 12.216. See 16 Tex. Admin. Code §§ 12.148 (Recla mation Plan: Ponds,
I mpoundments, Ba

nks, Dams, and Embankments), .216(1) (re quiring application to be acc urate and complete and comply with the TSMRC A and Commi ssion rules). MCEPHA and Ba x ter asser t the

same arg ument in their third issue. As part of Commi ssion require ments th at eac h application contain a plan for rec lamation of the lands within the proposed permit are a, Rule 12.148 require s the

I n its fourth issue, the County also arg ues that th e cu m u l at i ve weig ht of the proce dural 1 6 irreg ularities addre ssed in its first three issues, combined with the volume and unmanag eable nature of the a dminist rative r ecor d, deprive d the par ties of the mi nimum administrative due process they wer e due. “[T] he ultimate test of due proce ss of law in an administrative hear ing is the prese nce of rudiments of fair play long known to our law.” State v. Cr a n k , 666 S.W .2d 91, 94 (Tex. 1984). Having conclude d that the hear ing examiner did not abuse her discretion in the ruling s challeng ed in the County ’s first three issues or in declining to require a consolidated re co rd , we likewise conclude that the combined ruling s di d n o t deprive the parties of due proce ss and overr ule the rema inder of the County ’s fourth issue. 30application to include “a g ener al plan for eac h proposed sedimentation pond

. . . within the proposed

permit are a.” See id. § 12.148(a)

. “Ea ch g ener al plan shall

. . . contain a descr iption, map, and cross section of the structure and its location.” Id. § 12.1 4 8 (a )( 1 )(B ). Eac h plan must also contain a schedule of dates that any detailed d es ign plans not submitt ed with the g ener al plan will be

s u b mi tt e d , a n d th e d e ta il e d p la

n s mu s t b e a

p p r o v e d b e f

o r e c o n s tr u c ti o n b e g in s . I

d

. § 1 2

. 1 4 8 ( a ) ( 1 ) ( E )

. I n its application, DRCP stated the number of sedimentation ponds it was proposing during the term of the permit and submitt ed a schedule of construction, with estimated construction
y ear s for ponds SP-1 throug h SP-7. SP-1 throug h SP-3 wer e proposed for construction in 2011 and 2013; SP-4 throug h SP-7 wer e proposed for construction in 2014. DRCP submitt ed detailed desig n
p l an s for SP-1 throug h SP-3 and g ener al desig n plans for ponds SP-4 throug h SP-7. The g ener al desig n plans for SP-4 throug h SP-7 included a “ty pical” cross section for sedimentation ponds. The final order approve d ponds SP-1 throug h SP-3 for con s t ru ction and noted that “[d] etailed desig n pl an s fo r P o n d s SP-4 throug h SP-7

. . . must be submitt ed to the Division and approve d prior to construction of the se ponds.”

Appellants arg ue that beca use the application contained only a ty pical cross section for SP-4 throug h SP-7, it is incomplete, and the final order violates Commi ssion Rules 12.148 and
1 2

. 2 1 6 ( 1 )

. S

e e id

. § § 1 2

. 1 4 8 ( a ) , . 2 1 6 ( 1 )

. Co n s e q u e n tl y , th e y c o n te n d , w h e th e r th e p o n d s a r e d e s ig n e d in compliance with Commi ssion Rules 12.344 and 12.347, as require d by Commi ssion Rule 12.148, is not known. See id. §§ 12.148(b) & (c) , .344, (Hy drolog ic Ba lance : Silt ation Structures), .347 (Hy drolog ic Ba lance : Permane nt and Tempora ry I mpoundments). Appellants further ar gu e that beca use DRCP may submit desig n plans in the future, the y are prec luded from pa

rticipating in the

31decision, eff ectively ci rcumve nting their rig ht to a hear ing on the adequa cy of the desig ns and abrog ating their due pr ocess r ights. We do not find these a rg uments persua sive. Rule 12.148 require s eac h g ener al plan to contain, among other things, a cross section of the pond structure

. See id. § 12.148(a) (1)( b). DRCP submitted c ross sections for SP-1 throug h SP-3, and the Commi ssion approve d them fo r co n s t ru ction. I t submitt ed a ty pical cross section for SP-4 throug h SP-7, and the Commi ssion did not approve them for constru ct i o n, instead requiring DR C P to submit detailed plans prior to beg inning construction. Rule 12.148 expressly

c o n te mp la

te s s u b s e q u e n t s u b mi s s io n a

n d a p p r o v a l o f d e ta il e d d e s ig

n p la n s . S e e id

. § 1 2

. 1 4 8 ( a ) ( 1 ) ( E )

. Consequently , approva l of the application as to SP-1 throug h SP-3 in the absenc e of detailed desig n plans for SP-4 throug h SP-7 does not violate Comm ission R ules 12.148 or 12.216(1)

.

Nor does it violate appellants’ due proce ss ri gh t s . As noted above, due proce ss

r e q u ir e s o n ly o n e a d e q

u a te h e a r in g in a n a d m in is tr a ti v e p r o c e e d in g . S

e e B r o wn in

g - F e r r is , 6 4 4 S. W. 2 d at 127. The g ranting or re fusal of f urther he aring s on a matter that has previously been before the Commi s s i o n on one or more ear lier hear ings is within the sound discretion of the Commi ssion,

an d unless there is an abuse of discretion the courts do not interfe re. Id. at 128 (citing Pan A m. P et r o l eu m C orp. v. Rail road Comm’n , 335 S.W .2d 425, 430 (Tex. Civ. App.—Austin 1960, writ ref ’d n.r.e.)

. As this Court rec og nized in Browning-Ferris , we rely on expert Commi ssion staff to insure that modified or subsequent plans c omply with Comm ission re g ulations, a nd if compliance is lacking , the Commi ssion has power s of enfor ceme nt. See id. ; see also Tex. Nat. Res. Code §§ 134.161–.183; 16 Tex. Admin. Code §§ 12.677–.684 (Enf o rc em en t). I n short, Rule 12.148 contemplates submis sion of detailed desig n plans afte r approval of the application, and n o s tatute

32or rule require s notice and hear ing upon subsequent submissi on of detailed plans unless deeme d

appropr iate in the discretion of the Commi ssion. We conclude that the Commi ssion did not violate its own rules or Appellants’ due proce ss rig hts in approving DRCP’s application prior to submissi on of deta iled plans for SP-4 throug h SP-7 and requiring such plans be submitted and a pproved pr ior
to construction. We overr ule the City ’s and Hospital District’s issue I I I (A) and MCEPHA and
Ba x ter’s third issue. 1 7

Air P ollution Control P lan

I n the City ’s and Hospital District’s I ssue I (C) and MCEPHA’s and Ba x ter’s fourth issue, Appe l l an t s argue that the final order violates Commi ssion Rule 12.143 by approving the application without an air pollution control plan. See 16 Tex. Admin. Code § 12.143(a) (1), (2) (Air Pollut ion Control for Surfac e Mining). MCEPHA and Ba x ter also asser t that as a result, the final 1 8
order also violates Commi ssion Rule 12.216. See id. § 12.216 (re quiring application to be acc urate and complete and comply with the TSMRC A and Commi ssion rules). Rule 12.143 require s that an application for a per

mit to s urfa ce mine c oal include a n air pollution control plan for fug itive-dust control prac tices in acc ordanc e with Commi ssion Rule 12.389 and a monitoring prog ram to ensure 1 9
Ap p el l ants also asser

t that the application and final order violate the require ments of 1 7 Commi ssion Rules 12.148(b)–( c) and (f) , 12.344, 12.347, and rela ted fede ral rules. Howeve r, they offe r no arg

ument or citations to the record in support of t his asser tion and have t here fore waived it. See Tex. R. App. P . 38.1(i).

The proposed mine is require d to comply with sub section (a) of Rule 12.143 beca use i t 1 8 is located west of t he 100th meridian west longitu d e and proposes annual production in excess of 1 milli on tons of coal. See 16 Tex. Admin. C ode § 12.143(a ). Commi ssion Rule 12.389 require s that exposed surfa ce are as be protec ted and stabiliz ed 1 9 to control erosion and that rills and g ullies that form be filled or stabiliz ed, topsoil repla ced, and the 33that the dust control plan is eff ective. See id. § 12.143(a) (1), (2). Fug itive dust is define d as

2 0 2 1 “par ticulate matter not emitted from a duct or st ac k wh i ch become s airborne due to the forc es of wind or surfa ce coal mining opera tions or both.” See i d

. § 1 2

. 3 (7 5 ) (De finitions). Fug itive dust includes such things as emissions from hau l roads, wind erosion of exposed surfa ces, and

rec lamation opera tions. See id.

Appellants arg

ue that DRCP’s application contained plans to control dust with water

or chemica ls but did not identify sufficie nt water resour ces or the chemica ls or prese nt any rea l plan
to control dust bey ond ass ertions that it would comply with the rules. The rec ord ref lects that
DRCP’s plan included “wa tering and/or chemica l trea tment for soil stabiliz ation

. . . as neede d,” “minimiz ing activity during high wind conditions an d reduc ing equipment speed during all

are as re seede d or re planted. See id. § 12.389.

The Commi ssion asser

ts that the City has waived this issue by faili n g t o as sert it in its 2 0 motion for rehe aring

. Howeve r, the City ’s joint motion for rehe aring with the Hospital District includes an arg ument that DRCP “[did] not submit[ ] a fea sible air pollu t i o n co n t rol plan under section 12.143(a )(2) of the a pplication . . . .” and tha

t the dust control plan was ina dequate

. Thus, at least as to the fug itive dust control plan, the City and the Hospital Distri ct h av e p re serve d this issue. There is no dispute that MCEPHA a nd Ba x ter pre serve d this iss ue for revie w as to the dust control plan. We addre ss below, DRCP’s contention that Appellants failed to r aise this issue as to the monitoring pr og ram during the hea ring

. Ex pert testimony ref

lected that emissions from stationary source s rela ted to the mine—as 2 1 opposed to source s rela

ted to actua l mining—ar e g overne d by the Texas Clean Air Act and reg ulated by the Texas Commi ssion on Environmental Quality (TCEQ). See generally Tex. Hea lth & Safety Code §§ 382.001–510. TCEQ reg ulations cover such emissions source s as convey or belts and coalclea ning eq u i p ment. For this aspec t of air quality reg ulation, DRCP obtained a “per mit by rule” from TCEQ (PBR ). A P BR may be issued to cer tain ty pes of fac iliti es that will not make a signific ant contribution of air contaminants to the atmosphere

. See id. §§ 382.05196, .057. Ex pert testimony further ref

lected that emissions from actua l mining activities and rela ted emissions, such as from mobile equipment and vehicular traff ic on dirt roads, are reg

ulated by the Commi ssion, and it is for these emissions that a dust control plan and monitoring prog ram are require d by Rule 12.143. 34opera tions.” I t also included veg etating or mulching roads, restric ting trave l on un-es t ab l i s hed

roads, minimi zing the are a of disturbed land d u ri n g m ining, scra ping and compac ting unpaved roads and removing debris from roads, promptly reve g etating reg rade d lands, restric ting the ar ea blasted at any one time, inspecting for b u rn i n g wh en the potential for spontaneous combustion is high, and restric ting other activities causing fug itive dust durin g periods of air stag nation. There

was evidenc e that the EPA had conclude d that there would be no adver se health impact associate d with dust emission based on modeling exercises done befor e implementation of a dust control plan and expert testimony that the dust control plan would add another “saf eg uard of protec tion” and

was “ade quate protec tion.” Commi ssion Rule 12.143 does not require the applica n t t o identify
water source s or s p ec i fi c ch em icals to be used, see id. § 12.143, and there was Commi ssion staff testimony to that eff

ect. There was also expert testimony that the amount of water neede d cannot 2 2
be predic ted in advanc e and can only be estimated, that the dust control plan was fea sible, and that,

I nterve nors’ relianc e on BFI W aste Systems of North America, Inc. v. Ma r tinez 2 2 Environmental Group is misplaced. BFI involved TCEQ’s reg ulation of solid waste fac iliti es. See 93 S.W .3d 570, 574 (Tex. App.—Austin 2002, pet. denied)

. BF I soug ht a permit to expand its landfill, the district court held that its site opera ting plan was insufficient, and th is Court ag ree d. See id. at 573, 580. The applicable TCEQ rule define s “the basic elements for an application” and provides that “[a]ll aspec ts of the application and desi gn requirements must be addre ssed.” See 30 Tex. Admin. Code § 330.57(d) (Tex. Comm’n on Envtl. Quality , Permit and Reg i stration Applications for Municipa l Soli d Waste Fa cilities). The court obser ved that instead of

setting out specific opera

ting proce dures, TCEQ had opted to issue rules consisting of g ener al require ments that allowed landfill opera

tors to develop procedur es tailored to their individual sites, that the s pecif ic proce dures had to be included in a detailed site opera ting plan, and that deviation from an approve d plan would be deeme d a violation of the rule. See BFI W aste Sys. , 93 S.W .3d at 580 (“[TCEQ] has reje cted a one-size-fits-a ll approa ch to reg ul at i o n . . . .”). I n contra st, the Commi ssion has not adopted rules setting out only the basic elements for an application and requiring applicants to develop individualiz ed plans that comply with those g ener al require ments. I nstead, Rule 12.143 sets out specific require ments for an air pollution control plan for su rf ac e mining and assesses all applications ag ainst those require ments. We do not find BFI controlling here

. 35in fac t, the mine “has a better control plan for fug itive dust emissions than other mine sites

. . . I ’ve

seen.” We conclude that there is substantial evidenc e to support the Commi ssion’s conclusion that
DRCP’s fug itive dust control plan complies with the require ments of Commi ssion Rule 12.143.
See Tex. Gov’t Code § 2001.174; Texas Indus. Energy Consumers , 324 S.W .3d at 105; Mi r eles , 9 S.W .3d at 131.

Commi ssion Rule 12.143 also require s a monitoring prog ram to evalua te the eff ectivene ss of the proposed fug itive dust control prac tices to comply with state and fede ral air quality standards. See Tex. Admin. C ode § 12.143. Appellants complain that DRCP developed a

1 0 prog ram t o m o nitor particula te matter less than 10 microns (PM ) instead of particula te matter

2 .5 less than 2.5 microns (PM ) despite the exis tence of fede ral National Ambient Air Quality

2 .5 2 .5 S t andards (NAA QS) for PM and evidenc e that the mine will be a source of PM

. App el l an t s

1 0 contend that DRCP relied on “an out-dated and inapplicable surrog acy policy (i.e. usi n g P M

2 .5 compliance as a surrog ate for PM [compli ance]

. ” DR CP asser ts that Appellants did not raise

2 .5 2 .5 the issue of compliance with PM or introduce any evidenc e conce rning the PM standard during
t h e hear ing. Although MCEPHA and Ba x ter did raise this issue in their motion for rehe aring , i n

o u r re v i ew o f the rec ord, we have not located—a nd Appellants have not pointed us to—where Appellants raised this issue during the hear ing. T h u s, it appea rs that Appellants have waived this complaint.
E v en assum ing Appellants have not waived this complaint, there was exper t

2 .5 testimony that, while coal mining opera tions are source s of PM , only 19% of the particula te matter is less than 10 microns, and the EPA has deter mined that only three to six perc ent of the particula te

36matter em i t t ed is less than 2.5 microns. There was also expert testimony that there would be no

2 .5 1 0 benef it to monitoring for PM beca use it is such a small fra ction of the PM emissions and beca use

2 .5 1 0 it is possible to estimate PM levels “by using one o f t h e E P A’ s factors to the PM data that’s collecte d and see if that shows a signific ant impact or not.” Fur ther, althoug h the surrog acy prog ram ended some 18 months prior to the Commi ssion’s final order , see 76 Fe d. Reg

. 28,646 (May 1 8,

2 .5 2011) (codifie d at 40 C.F.R. pt. 52), there was expert testimony that the implementation of the PM standard was very rec ent, that the state was still working out how to implement it and when it wa s

2 .5 g oing to r equire it, and that both the state and the EPA had deter mined that compliance with PM

1 0 standards could be demonstrated by compliance with PM standards. There was also evidenc e that

1 0 DRCP had monitored air quality at the site since 2004 by measuring PM levels and had established

a set o f b as el i ne results by which to assess the eff ectivene ss of the dust-control prac tices it i m p l em en t ed. Thus, we conclude that there is substantial evidenc e to support the Commi ssion’ s deter mination that DRCP’s monitoring prog ram complies with Rules 12.143 and 12.216(1). See 2 3
Tex. Gov’t Code § 2001.174; Texas Indus. E nergy Consumers , 324 S.W .3d at 105; Mireles ,

Appellants also asser

t that the Commi ssi o n ’s ap p rovi ng an application that does not 2 3 contain an a dequate air pollution control plan violates their due proce ss r ights by prec luding them a hea ring on the plan DRCP will us e. Having conclude d that there is substantial evidenc e that the application contains an adequate plan, we further conclude that approva l of the plan does not violate Appellants’ due proce ss rig hts. I n addition, Appellants have failed to alleg e the depriva tion of any protec ted proper

ty or liberty interest and have t h er ef o re failed to state a due proce ss claim. See Spring Branch Indep. Sch. Dist. v. Stamos , 695 S.W .2d 556, 560–61 (Tex. 1985); City of Arlington v. Centerfolds, Inc. , 232 S.W .3d 238, 248–49 (Tex. App.—For t Worth 2007, pe t. d e n ie d ) ; KEM Tex., Ltd. v. Texas Dep’ t of Transp. , No. 03-08-00468- CV, 2009 Tex. App. L EXI S 4894, at *18–19 (Tex. App.—Austin J une 26, 2009, no pet.) (mem. op.). 379 S.W .3d at 131. We overr ule the City ’s and Hospital District’s I s s ue I (C) and MCEPHA’s and
Ba x ter’s f ourth issue.

Blastin g P lan
I n the City ’s and Hospital Dist ri ct ’s I s s ue I (B ) and MCEPHA’s and Ba x ter’s fifth issue, Appellants arg ue that the final order , in particula r Finding of Fa ct 44, err s beca use the require d blasting plan fails to comply with sections 134.042 and 134.092(a) (15) of the TSMRC A and Commi ssion Rules 12.141 and 12.216. See Tex. Nat. Res. Code §§ 134.042, .092(a) (15); 16 Tex. Admin. Code §§ 12.141 (Ope ration Plan: Bla sting), .216(1) (re quiring application to be acc urate and complete and comply with the TSMRC A and Commi ssion rules). Section 1 3 4

. 0 4 2 provides that “[a]n applicant for a surfa ce coal mining and rec lamation permit shall submit to the commission as part of its application a blasting plan that outlines the proce dures and standards by which the opera tor will comply with Section 134.092(a) (15).” Tex. Nat. Res. Code § 134.042. Section 134.092(a) (15) require s an opera tor “to ensure that explos ives are used in acc ordanc e with state an d fe d er al l aw, including commission rules.” Id. § 134.092(a) (15). Commi ssion Rule 12.141 provides that “[e]ach application shall contain a blasting plan for the proposed permit are a, explaining how the application will comply wit h t h e require ments of §§ 12.357–12.360 and 12.362 of this title

. . . .” 16 Tex. Admin. Code § 12.141; see id. § 12.357 (Use of Ex plosives: Gener al Requireme nts), .358 (Use of
Ex plosives: Pre-B lasting Survey ), .359 ( Use of Ex plosives: Bla sting Schedule) , .360 (Use of
Ex plosives: Control of Adver se Effe cts), .362 (Use of Ex plosives: Records of Bla sting Oper ations). Rule 12.141 further

require s that the blasting pla n include the “ ty

pes and a pproxi mate amounts of explos ives to be used for eac h ty pe of blasting opera tion to be conducte d” and descr iptions of seven

38other aspec ts of the blasting proced u res, including a “desc ription of methods to be applied in

c o n tr o ll in g a d

v e r s e e f f e c ts o f b la s ti n g o p e r a

ti o n s . ” S e e id

. § 1 2

. 1 4 1 ( 1 )

– ( 8 )

. I

n a d d it io n , Co mm is s io n Rule 12.357 require s a “bla st design” if blasting ope rations will be conduc ted within 1,000 fee t of

cer tain public buildings or within 500 fee t of cer tain fac iliti es includin g u n d ergr ound mines. Id. § 2.357(d)( 1). The blast desig n may be included in the appli ca t i o n o r s ubmitted at a later time, befor e the blast, a

pproved by

the Commiss ion. Id. §12.357(d)( 2). Appellants contend that DRCP’s blasting plan is leg ally defic ient beca use it does not contain the require d basi c el em en t s . I n particula r, they complain that it omits the approximate
amounts o f ex p l o sives to be used and “re lies on mere hy potheticals.” See id. § 12.141(1). The

rec ord ref

lects that DRCP’s blasting plan initially failed to include appr o x i m at e amount s of explos ives to be used, and Commi ssion staff noted a defic iency in its technica l analy sis. Howeve r, in a subsequent technica l analy sis, staff noted that in a supplement to the application, DRCP “used the scale d distance formula to calc ulate the maxi mum amount of explos ives to be used,” conclude d that the “informa tion now meets the require ments of Rule 12.141(1),” and withdrew the defic iency

. The Commi ssion’s mining eng ineer also testified that the use of the scale d distance equation met Commi ssion requireme nts, specifica lly Rule 12.360. Appellants also complain t hat t he plan does
not include a descr iption of the methods to be applied in controlling the adver se eff ects of blasting.
See id. § 12.141(8). DRCP’s blasti ng plan stated that blasting would be conduc ted in a manne r to
preve nt injury or damag e outs ide t he permit are a, that blasting wou l d n o t b e conducte d in an area

cover ed by

Rule 12.357(d), a

nd that fly

rock w ould not be cast bey ond the l imits specifie d in Rule 12.360(g ), but that if there was potential for that to occur , blasting mats would be used. Commi ssion

39staff conclude d that “[t] he information provided in the application, as supplemented, is adequate to

addre ss the requirements of § 12.141.” The Com mi s s ion’s mining engine er also testified t hat t he blasting plan explained how DRCP would comply with Commi ssion Rules 12.267 throug h 12.360 and that the plan met the basic require ments for blasting plans. DRCP’s expert witness testified that the information conta ined in the plan wa s sufficient unde r R ule 12.141. Even MCEPHA’s expert mining witness, althoug h opining that the plan did not meet industry standards, acknow ledg ed that “[i] t defini tely does meet the Railroad Commi ssion standard.” We conclude that substantial 2 4

ev i dence supports the Commi ssion’s finding that DRCP’s application contains a g ener al blas t i n g plan in compliance with Rules 12.141 and 12.216(1). See Tex. Gov’t Code § 2001.174; Texas Indus.
E n ergy Consumers , 324 S.W .3d at 105; Mireles , 9 S.W .3d at 131. We overr ule the City ’s an d 2 5 Hospital District’s I ssue I (B ) and MCEPHA’s a nd Ba x ter’s f ifth issue.

Appellants cite the t estimony of t wo ot her ex perts in support of t h ei r ar gu m en t that the 2 4 blasting plan does not meet the require ments of Rule 12.141. DRCP’s mining expert testified that there was no specific blasting pla n at the time but that if blasting w as nee ded, the applicant would g et a cer tified blaster and “wor

k up a blasting plan that satisfies people.” CRF’s president simil arly answe red, “No, it’s not” when ask ed if section 141 of DRCP’s application was a blasting plan. Appellee s contend that the totality of these witnesses’ testimony ref lects that they wer e ref

err ing to a blast design require d under Rule 12.357, not the blasting plan require d under Rule 12.141. We ag ree . When these statements are rea d in the context of the rema inder of thei r t es t i m o n y an d the content of Rules 12.141 and 12.357, it is ap p ar en t t h at t hey ref er to a blast desig n, which may be submitt ed af

ter the a pplication, not to a blast plan, which must be included in the a pplication. Appellants also assert t h at beca use the plan does not comply with TSMRC A sections 2 5 134.042 and 134.092(a) (15) and Commi ssion Rules 12.141 and 12.216, the decision deprive d them of due proce ss, but h av i n g offe red no discussion or analy sis on this arg ument, have waived that a r g u me n t. S e e T e x. R. A

p p . P. 3 8

. 1 ( i)

. E v e n if th e y h a d n o t w a iv e d th is a r g u me n t, h a v in g c o n c lu d e d that there is substantial evidenc e that the application contains an adequate blasting plan, we would also conc lude that the fina l order doe s not violate Appellants’ due proce ss rig hts on that basis. 40P rote ction of Cul tural and H istoric Re sources I n the City ’s and Hospital District’s I ssue I I I (B ) and MCEPHA’s and Ba x ter’s six th issue, Appellants ar g ue that the final order is invalid beca use the Commi ssion failed to comply with the National Historic Preser vati o n Ac t (NHPA) and rela ted leg al require ments. The NHPA

au thorizes the maintenanc e and expansion of a “Na tional Reg ister of Historic Places compos ed of districts, sites, buildings, structure s, and objects signific ant in Ameri ca n h istory , arc hitecture ,

arc heolog y , eng ineer ing, and culture.” 16 U.S.C. § 470a(a )(1) (A). Section 106 of the NHPA 2 6 provides that, prior to approva l of expenditure of fede ral funds, the head of any fede ral ag ency must
t ak e i nto acc ount the eff

ect of the underta king on any district, site, building, structure , or object elig ible for inclusi on in the National Reg ister and aff ord the Advisory Council on Historic
Preser vation established under th e NH P A t he opportunity to comment. See id

. § 470f (sec tion 106). “The section 106 proce ss seeks to acc ommodate historic prese rvation conce rns with the 2 7
needs of Fe dera l underta

kings throug h consultation among the ag ency officia l and other parties with

an interest in the eff

ects of the underta king on historic proper ties

. . . .” 36 C. F. R

. 800.1(a)

. The
ag ency officia l involved must consult with the state historical prese rvation office r, I ndian tri b es and Native Hawa ii an o rganiz ations, repr esenta tives of local g overnme nts, and individuals and
org anizations with a demonstrated intere st. See 36 C.F.R. 800.2(c)

.

Section 470a, in eff

ect at the time of the hear ing and appea l to the district court in this 2 6 case , wa s s u bsequently repe aled and editorially transfe rre d in the enac tment of Title 54, National Park Sy stems and Related Prog rams. See Pub. L . 113–287, § 7, 128 Stat. 3094, 3272 (2014).

Sectio n 4 7 0 f, i n eff

ect at the time of the hear ing and appea l to the district court in this 2 7 case , was subsequently repe aled an d editorially eliminated in the enac tment of Title 54, National Park Service s and Related Prog rams. See I d. 41The rec ord ref lects that, in a cce pting fede ral funds for the state prog ram to r eg ulate surfa ce coal mining and rec lamation opera ti o ns, the Commi ssion ag ree d to implement historic
prese rvation provisions in the state prog ram “in a manner consistent with the assura nce [i t] provided

. . . to assist the OSM in meeting its responsibilities with Section 106 of the [NHPA] .” Acc ording ly , the Commi ssion issued ru l es providing for historical prese rvation. See 16 Tex. Admin. Code §§ 12.125(2) (Ge nera l E n v i ronmental Resource s I nformation) (re quiring application to identify cultu ra l , h i s t oric, and arc heolog ical resource s listed on or eligible for listi ng on National R eg ister and known arc heolog ical s i t es ), .151 (Protection of Public Parks and Historic Places) (re quiring applicant t o p re v en t adver se impacts on public parks and place s listed on National Reg ister and authorizing Commi ssion to require p ro t ec tion throug h mitigation and trea tment measure s). The Commi ssion complied with Rules 12.125(2) and 12.151 throug h a Memorandum of Under standing ( M O U ) e n te r e d in

to w it h th e T e xa s H is to r ic a l Co mm is s io n ( T H C)

. U n d e r th e M O U , th e Co mm is s io n for war ded the application to THC, which revie wed it for compliance with historical prese rvation require ments and provided a response and re commendations to the Commissi on. The City and the Hospital District arg ue that “the Commi ssion and other authorities failed to notify and/or consult with rec og nized I ndian Tribes as require d by the [NHPA] .” Howeve r, the City and the Hospital District do n o t h av e standing to asser t the interests of third parties wh o alleg edly did not rec eive notice. See McD aniel v. Texas Nat. Res. Conservation Comm ’n , 982 S.W .2d 650, 6 5 4 (Tex. App.—Austin 1998, pet. denied) (landowne r had no standing to complain of ag ency ’s alleg ed failure to provide notice of proposed solid waste disposal site to other landowner s); Smith v. Houston Chem. Servs., Inc. , 872 S.W .2d 252, 273 (Tex. App.—Austin 1994,

42writ denied) (opponent to Texas Water C ommissi on’s i s s u an ce of permit could not be prejudiced

by permit applicant’ s failure to notify another person) (citing Tex. Gov’t Code § 2001.074(2), requiri ng reve rsal or rema nd of ag ency decision if appellant’ s substantial rig hts have been prejudice d). We there fore decline to a ddress this arg ument of the City and the Hospital District. 2 8
See M cDaniel , 982 S.W .2d at 654. The City and the Ho s p ital District also contend that the City was not consulted

conce rning historical proper ties and “asse rts its rig hts pursuant to the Act” to be consul t ed

. T he Hospital District has no standing to asser t this arg ument, and we do not addre ss it as to the Hospital District. See id. The City offe rs no arg ument or citation to the rec ord in support of this contention and has there fore waived it. See Tex. R. App. P. 38.1(i). Having offe red no arg ument, the City has also failed to establish the requisite harm for reve rsible error. See id. R. 44.1. L ikewise, th e C ity and the Hospital District have failed to offe r any arg ument or citation to the rec ord in support of their

asser tion that THC is a nece ssary party to this matter or in support of their arg ument that these

To the extent MCEPHA and Ba x ter also asser t lack of notic e t o t h e I n d ian Tribes, 2 8 we re ac h t h e same conclusion as to their lack of standing

. See McD aniel v. Texas Nat. Res. Conservation Comm’n , 982 S.W .2d 650, 654 (Tex. App.—Austin 1998, pet. denied)

. Be cause we do not rea ch this issue, we do not addre ss Appellants’ arg uments conce rning the validity of the MOU as a means of meeting the notice require ment or MCEPHA’s and Ba x ter’s arg uments that use of the “unpublished” MOUviolated their due proce ss rig hts.
Even if Appellants had standing to raise this issue, the rec ord ref lects that the EPA conducte d the required n o t i ce and consultation. There is evidenc e that EPA consulted with the Kickapoo, Comanche, and Mesca lero Apac he Tribal Councils in 1994 when DRRC filed the application, and that the Kickapoo Tribe acc ep te d , in dicating tribal lands of interest in Maver ick, the Comanche Tribe declined, indicating no tribal lands wer e aff ecte d, and the Mesca lero Apac he Tribe did not respond. The rec ord also ref

lects that the Kickapoo participa ted in the hear ing on the ap p l i ca t i on for rene wal/extension unti l withdrawing its objec tions, a nd there was evidenc e that Commi ssion staff deter mined that the applica tion complied with Com mission R ules 12.125(2) a nd 12.151. 43alleg ed er

rors violated the ir due proce ss rig hts and have waived the se conte ntions as well. See id. R. 38.1(i). We overr

ule the City ’s and Hospital District’s I ssue I I I (B ).
MCEPHA a

n d B a xte r a

r g ue that the permit is prema ture beca use it violates the timing provision of the NHPA reg ulations, which require s that “[t] h e age n cy officia l must complete the section 106 proce ss ‘prior to the approva l of the expenditur e o f an y fede ral funds on the underta king.’ ” See 36 C.F.R. § 800.1(c)

. Howeve r, as shown by its express lang uag e, the reg ulation applies to the expenditure of fede ral funds by fede ral a g encie s. See P ochucha , 290 S.W .3d at 867 (our primary conce rn is express statutory lang uag e). Historical prese rvation Rules 12.125 (2) and 12.151, issued by the Commi ssion to assist the OSM in meeting its s e ction 106 require ments, contain

no such timing rule. Fur

ther, the rec ord ref

lects that there are 11 sites that wer e listed in the National Reg ister or require further testing to deter mine their elig ibilit y for listi ng and that there will be

n o “m i ning activities” whatsoeve r prior to deter mination of whether the y et undeter mined site s

are elig ible.
I

n a s e e m i n g ly u

n r e la te d a r g u me n t, M CE PH A a

n d B a xte r a

r g u e th a t t h e “ j u ri s d i c t i o n a l ” notices require d under Commi ssion Rule 12.207 “ar e missing.” Rule 12.207, unrela ted to the h i storical prese rvation require ments, provides that written notification of a permit appli ca t i o n shall be sent to specifie d state ag encie s and fede ral, state, and local ag encie s with jur isdiction ove r

or an i n t er es t i n the are a of proposed mining opera tions. See 16 Tex. Admin. Code § 12.207(c) (Public Notices of Filing of Permit Applications). MCEPHA and Ba x ter offe r no aut h o ri t y for their asserti on that notices under Rule 12.207 are jurisdictional. I n the absence of a jurisdi ctional require ment of notice, MCEPHA and Ba x ter have no standing to complain of a lack of notice to third

44partie s . S ee Mc Da n iel , 982 S.W .2d at 654. Fur ther, even i f t he R ule 12.207 notice requirements

are jurisdictional, the rec ord ref lects that the re q uisite notices wer e sent. I n an eff ort to clar ify confusion concer

ning the various noti ce require ments, the hearing examiner s t at ed t h at “the rules require that the Commi ssion send mailed notice to various fede ral ag encie s,” that “these

. . . public notices that wer e require d [are] in the rec ord and they can cer tainly be viewed by any one,” and that “they wer e acc epted into the rec ord ear lier i n t h e p ro ce eding .” We overr ule MCEPHA’s and
Ba x ter’s sixth i ssue.

Wildl if e P rote ction
I n the Ci ty ’ s I s s u e I ( o p e n in g para g raph) and I (D) and MCEPHA and Ba x ter’s seventh issue, Appellants arg ue that the final o rd er err s beca use the application failed to use the best technolog y curr ently available to enhanc e wi l d l i fe resour ces in violation of sections 134.091 and 134.092 of the TSMRCA a nd Commi ssion Rules 12.380, 12.144, and 12.216. See Tex. Nat. Res. Code §§ 134.091, .092; 16 Tex. Admin. Code §§ 12.144 (F ish and Wil dlife Plan), 216(1) (re quiring application to be accur ate and complete a n d comply with the TS MRCA and C ommissi on rules to be approve d), .380 (Protection o f Fi s h , Wil dlife, and Related Environmental Values)

. Section
134.091 provides that a permit shall require that coal mining opera tions meet the “applica ble perf ormanc e standards of this chapter.” Tex. Nat. Res. Code § 134.091. Section 134.092 sets out
p e r f o r ma n ce standards that include requiring mining opera tions to minimi ze disturbance a n d a d v e r s e impacts of the opera tions on wildlife and to enhanc e wildlife resour ces to the extent possible using the best technolog y curr ently available

. See id. §134.092(a) (24). Commi ssion Rules 12.144 and
12.380 implement section 134.092(a) (24) by requiring an opera tor, to the extent possible, to use the

45best technolog y curr ently available to minimi ze impacts on wildlife and enhanc e wildlife resour ces

and to inc lude in the application a descr iption of how such minimi zation and enhanc ement will be achie ved. See 16 Tex. Admin. Code §§ 12.144, .380. DRCP’s plan calls for committing not to mine the main channe l of Elm Creek, maintaining a 200 foot buffe r zone on eac h side of the main channe l, and li miting clearing within 100 fee t of t he buff er z one to day light hours. Other measure s set out in DRC P ’s p l an i n clude the rec lamation of original vege tation ty pes, t he addition of new specie s, minimi zation of the amount of potential habitat that will be modified at any one time, the avoidanc e

or minimi zation of the use o f pesticides and herbic ides, erosion control measure s to minimi ze impacts to surfa ce water s, and educa tion of employ ees and contra ctors reg arding the rec og nition of endang ere d wildcats and the ir habitat.

Appellants arg ue that the measure s DRCP t ook are insufficient. The y contend that endang ere d ocelot and jag uarundi will be adver sely aff ecte d during the active mining phase and that

resour ces available to the cats will not be enhanc ed. Specifica lly , MCEPHA and Ba x ter arg ue that based on evidenc e that th e n o i s e from mecha nical equipment will extend bey ond the permit boundary , it follows that the noise eff ects will e x tend to E lm Cre ek and the buffe r zone. They cite expert testimony that the cats do not like noise and that it, along with lights and movement of people, will chang e their f

eeding , bree ding, or

sheltering behavior

. MCEPHA a nd Ba x ter further

contend that these eff

ects will constitute the ty pe of harm that constitute s a “take” under the Endang ere d Species Act (ESA) and implementing reg ulations. They also complain that DRCP ’s wi l dlife 2 9

The ESA prohibits the “take ” of any wildlife listed as endang ere d or threa tened pursuant 2 9 to proce dures outlined in the ESA

. See 16 U.S.C. § 1538(a) (1)( B) (def ining prohibited acts); see also id. §1533 (setting out proce dure for deter mination of endang ere d and threa tened specie s). The 46protec tion plan does not include berms on eac h side of the buffe r zone despite expert testimony that

they are technica lly fea sible and would re duce the noise level in the Elm Cree k corr idor. Be cause there was evidenc e that the cats use are as bey ond their core habitat, they arg ue that the buffe r should be wider. MCEPHA and Ba x ter also cit e t es t i m ony that DRCP’s plan to mine tributaries of Elm Creek will leave the permit are a with corr idors that do not connec t, perha ps causing the cats to abandon the corr idor.

MCEPHA and Ba x ter further claim that DRCP will no t u s e t he best technolog y

curr ently available in rec laiming the tributaries, pointing to testimony that there will not be a g rea ter

conce ntration of see dlings in the low ly ing riparia n are as that g row more brush and are favor ed by the cats and testimony that 20 y ear s from now DRCP will have restore d the veg etation to its curr ent state, without any enhanc ement. They urg e that DRCP’s plan to direc t employ ees who observe a cat
to repor t it to the Commi ssion, which will repor t it to the U.S. Fish and Wil dlife Service , should be enhanc ed by the use of trail came ras to monitor signific ant impairments in behavior patterns. They also arg ue that the proposed construction road just outside the buffe r zone will endang er the cats and if it is constructed, tra ffic should be limit ed to day light hours be cause the ca ts are noc turnal.

ESA define s “take ” of an endang ere d or threa tened specie s as “to hara ss, harm, pursue, hunt, shoot, wound, kill, trap, captur e, or collect, or to attempt to eng ag e in any such conduct.” Id. § 1532(19). “Ha rm” is define d to include “sig nificant habitat modification or deg rada tion wher e it actua lly kills or injures wildlife by signific antly impairing es s en tial behavior al patterns, including bree ding, fee ding, or sheltering .” 50 C.F.R. 17.3. “Ha rass” is define d as “an intentional or neglig ent act or omission which crea tes the likelihood of injury to [ listed species] by

annoy ing it to such a

n extent as to signific antly disrupt normal behavior patterns which include, but are not limit ed to, bree ding, fee ding, or sheltering .” Id. Rule 12.144 require s the Commi ssion to comply with the ESA. See 16 Tex. Admin. C ode § 12.144. 47Commi ssion Rule 12.1 4 4 s p ec ifies that enhanc ement may include such measure s

as “re storation of streams and other wetlands, rete ntion of ponds and impoundments, establishment of veg etation for wildlife food and cover , and the place ment of perc hes and nest box es.” See 16 Tex.
A d mi n . Co d e § 1 2

. 1 4 4 ( 3 ) ( B )

. T h e r e c o r d r e f le c ts th a t D RC P’ s p la

n in c lu d e s s e v e r a l o f th e s e me a s u r e s . The rec lamation plan calls for the rec lamation of orig inal specie s of veg etation, the addition of native and locally adapte d specie s that are depende nt only on rainfa ll as a source o f wa t er an d that will provide additional food and cover for wildli fe, and manag ement to preve nt invasive species. The plan also provides for th e construction of containment ponds that may provide additional resting place s for wildli fe. The hearing ex am i n er fu rt her found that the decision not to mine Elm Creek, when DRCP could have r equeste d to do so, and to prese rve a buffe r zone are enhanc ements. The recor d also contains a Biolog ical Opinion prepa red by the U.S

. Depa

rtment of the I nterior’ s Fish and Wil dlife Service

. The Commi ssion’s natur al re s o urce specia list testified that the Biologica l Opinion ref lects t he best technolog y curr ently available

. The W ildlife Service conclude d that the proposed mine “is not likely to jeopardize the c ontinued exis tence of t he li sted ocelot and jag uarundi. There is no critica l habitat list ed i n t h e s t ate of Texas for these specie s of cats, therefor e none will be affec t ed .” The W ildlife Service also conclude d that any “take ” of the
cats would be incidental, i.e., “incidenta l to, and not the purpose of, the car ry ing out of an otherwise lawful activity ” and that, g iven DRCP’s proposed measure s, it “is not likely to result in jeopar dy to ocelot or jag uarundi. ” I n ad d i tion, three witnesses testified that DRCP’s plan complies with Commi ssion rules. Whil e all of the wildlife experts ag ree d that the mining will aff ect the behavior of t he cats, they

also offe red te stimony

indicating that the ef

fec ts would be minimal or temporar y .

48A zoologist testified that the cats’ rea ctions to noise are very “individualized” and that some ha ve

no rea ction at all, that the nocturna l cats would be moving through t h e Elm Creek corr idor, not sleeping in it, that the cats will be somewhat protec ted from lights and noise in Elm Creek, and that he had studied the permit are a and had never seen a ny of the dense thorn brush habitat suitable for the cats’ dens. He also testified that the cats are very adapta ble and can move ahea d and to the sides of the slow-moving mining oper ations that will be done in narr ow strips followed by rec lamation. The zoologist also testified that berms on the sides of the b u ff er z one would be d etrim ental beca

use it would disrupt the natura l draina g e patterns, cause potential wetland s , an d interfe re with smaller animals’ acc ess to the cre ek. The Wil dlife Service conc l u d ed t hat the proposed buffe r zone is sufficient, and the Commi ssion’s na tural resour ces specia list testified that while DRCP’s plan calls for planting the same number of seedling s in low-ly ing are a as i n the uplands, more seedlings s urvive in lower area s, resulting in “dense r vege tation as t ime g oes on in

rec lamation.” On this rec ord, we conclude that s u b s tantial evidenc e supports the Commi ssion’s deter mination t h at DR CP’s plan uses the best technolog y curr ently available to comply with Commi ssion Rule 12.144 and rela ted provisions. See Tex. Gov’t Code § 2001.174; Texas Indus. 3 0 Energy Consume rs , 324 S.W .3d at 105; Mireles , 9 S.W .3d at 131. We overr ule t he C ity ’s I ssue I and I (D) a

nd MCEPHA and Ba

x ter’s se venth issue.

Appellants asser

t that beca use DRCP’s plan does not ref lect the best technolog y available 3 0 to minimi ze adver se eff

ects on the cats, the final order approving the plan violated their due proce ss rig hts. Howeve r, they fail to prese nt any discussion or analy sis to support this contention and have there fore waived it. See Tex. R. App. P. 38.1(i). Even if they had not waived this arg ument, having conclude d th at there is substantial evidenc e that the plan complies with the applicable statutory provisions and rules conce rning wildlife protec tion, we would also conclude that the final order does not violate Appellants’ due proce ss rig hts on that basis. 49Alter native Water Sources
I n their I ssue I (A), t h e City and the Hospital District arg ue that the final order err s beca use DRCP’s application fails to identify alterna tive wa ter source s that could be develope d to “re place ” exis ting water source s. There fore , th ey co n tend, the final order violates Commi ssion Rule s 1 2

. 1 3 0 and 12.216. See 16 Tex. Admin. Code §§ 12.130 (Alternative Water Supply
I nformation), 12.216(1) (re quiring application be acc urate and comp l et e and comply with the
TSMRC A and Commission rules to be approve d). Rule 12.130 provides that “[i] f contamination, diminuti on, or interruption may result, then the application shall identify the alterna tive source s of
water supply that could be develope d to repla ce t h e ex i s t i n g wa ter sources .

. . .” Id. This rule is rela ted to the statutory perf ormanc e bond require ment that a mine opera tor repla ce the water supply of a proper

ty owner whose water supply is contaminated, diminis hed, or interrupted as a proxi mate result of the c oal mining ope ration. See Tex. Nat. Res. Code § 134.110.

A p p e ll a n ts c o n te n d th a

t D RC P f a il e d to me e t th is b u

r d e n . I n s u p p o r t o f th is c o n te n ti o n , they cite the Commi ssion’s f inding that the applica tion sets out as alternative w ater source s wells,
water from sedimentation ponds, and trucke d water , with no mention of whether these source s are sufficie nt to repla ce exis ting water source s. Appellants further complain of the finding s that water rig hts “may ” be obtained and that DRCP has contra cted wit h t h e City of Eag le Pass to provide potable water , without acc ounting for the fac t that the contra ct wi th the City of Eag le Pass has expired. They cite testimony that the Commi ssion found initial defic iencies conce rning compliance with Rule 12.130 and acc epted submissi on of the now-e x pired water supply ag ree ment as evidenc e of compli ance . They arg ue that beca use t h e co n t ra ct—which they alleg e was the onl y basis upon

50which the Commi ssion approve d the “pre vious iteration of the permit application”—is no longe r in

exis tence , DRCP failed to establish that there are any alterna tive source s of water supply capa ble of repla cing exis ting water supplies. Consequently , they contend, the final order violates Rules 12.130 and 12.216.
I n itially , we observe that the rec ord ref lects that DRCP did not identify any downstream surfa ce water rig hts tha t mig ht be aff

ecte d and identified only five g roundwa ter wells that might b e aff

ecte d. There was expert testimony that those five wells would not be aff ecte d beca use they are not hy drolog ically

connec ted. Rule 12.130 provides:

The application shal l i d enti fy the exte nt to which the proposed surfa ce mining activities may proxi mately result in contamination, diminuti on, or interruption of an underg round or surfa ce source of water within the proposed permit or adjac ent are as

. . . . If conta m i nation, diminuti on, or i nterruption may result, then the application shall identify

the alter native sourc es of water supply

. . . .

Id. (empha sis added)

. Be cause the rec ord ref lects th at no surfa ce or g roundwa ter source s may be contaminated, it appea

rs from the plain lang uag e of Rule 12.130 that DRCP was not require d to identify alterna tive water source s. See id. ; Marks , 319 S.W .3d at 663. Nonethele ss, it appea rs from the rec ord that the Commi ssion require d that DRCP identi fy al terna te water supply source s and DRCP compli ed.

The rec ord ref

lects that DRCP identified as alterna te source s: drilling water wells and pumping to the aff

ecte d p ro p er t y o wn ers, trucking in potable water , and contra cting with the
C i t y of Eag le Pass and pumping water to aff ecte d proper

ty owner s. There was tes t i m o n y an d documentar

y evidenc e that the initial def iciency in ide ntify ing alterna tive water source s was cure d

51when DRCP supplemented the application and listed the above altern ative source s and that the

application then suffic iently identified alter

native wa ter sourc es and me t the require ments of Rule
12.130. The Commi ssion found that DRCP had identified the above alterna tive water source s and noted that the contra ct with the City of Eag le Pass may have expired. Thus, the contra ct did not form the sole basis of the staff’ s conclusion or the Commi ssion’s finding that DRCP had complied with Rule 12.130, and the application was found in compliance without the cer tainty of the contra ct with the City of Eag le Pass. We conclude that sub stantial evidenc e supports the Commi ssion’s deter mination that DRCP’s application met the require ments of Rules 12.130 and 12.216(1). See 3 1
Tex. Gov’t Code § 2001.174; Texas Indus. Energy Consumers , 324 S.W .3d at 105; Mireles , 9 S.W .3d at 131. We overr ule the City ’s and the H ospital District’s issue I (a)

.

Insu rance R equirem ents

I n their fourth issue, the City and Hospital District arg ue that the final order fails to establish that DRCP obtained the require d insurance cover ag e in violation of sections 134.052 and
134.053 of the TSMRC A and Commi ssion Rule 12.311. See Tex. Nat. Res. Code §§ 134.052, .053;
16 Tex. Admin. Code § 12.311 (Te rm s and Conditi ons for L iability I nsuranc e). Section 134.052 require s that the application contain “a cer t i fi ca t e satisfac tory to the commission that the applicant has a public liability insurance policy as descr ibed by Section 134.053

. . . .” See Tex. Nat.

Appellants asser

t tha t be cause the order does not comply with Rules 12.130 and 12.216, 3 1 it viol at ed their due proce ss rig hts. Howeve r, they fail to prese nt any discussion or analy sis to support this contention and have there fore waived it. See Tex. R. App. P. 38.1(i). Even if they had not waived this arg ument, having conclude d that t h ere is substantial evidenc e that the application complies with Rules 12.130 and 12.216, we would also conclude that the final order does not violate Appellants’ due proce ss rig hts on that basis. 52Res. Code § 134.052(a) (19). S ec t i o n 134.053 provides that the insurance require d by section

134.052(a) (19) “shall provide for persona l injury and proper ty d am age p rotec tion in an amount adequate t o co mpensate a person who is (1) damag ed as a result of surfa ce coal mining and

rec lamation opera tions, including the use of explos ives; and (2) entitled to compensa tion under state law.” Id. § 134.053. The Commi ssion promulg ated Rule 12.311 to implement sections 134.052 and 134.053. Rule 12.311 provides:
(a) The Commi ssion shall require the applicant to submi t at t h e time of permit application, a cer

tificate cer

tify ing that the applicant has a public liability insurance policy in force for the sur fac e coal mining and r ecla mation opera tion for which the permit is soug ht. The cer tificate shall provide for persona l injury and prop erty damag e protec tion in an amount adequate to compensa te all persons injured or proper ty damag ed as a result of surfa ce co al m ining and rec lamation opera tions, including use of explos ives and damag e to water wells, and entitled to compensa tion under the applicable provisions of state law. Minimum insurance cover ag e for bodily injury shall be $500,000 for eac h occur ren ce and $1,500,000 ag g reg ate; and minimum insurance cover ag e for proper ty damag e shall be $500,000 for ea ch occur renc e and $1,000,000 a g g reg ate.

16 Tex. Admin. Code § 1 2

. 3 1 1 (a)

. The Commi ssion addre ssed compliance with insurance require ments in Finding of F act No. 22 a s follows:

The rec ord of this proce eding contains a cer tificate of insurance in compliance with § 12.120 of the Reg ulations [which require s a permit application to contain either a cer tificate of liability insurance or evi d en ce that self-insura nce require ments are satisfied] that evidenc es liability insurance cover ag e in amounts equal to, or exceeding , those require d by § 12.311 of the Reg ulations. The form of this cer tificate has been approve d by the Texas De partment of I nsuranc e. This section of the application, as it has been supplemented in the rec ord of the public hear ing with this cer tificate, and testimony by applicant’ s witness Don Grischow, [footnote omitted] is in c o mp li a

n c e w it h the Reg ulations. Minimum insurance cover ag e for bodily injury must be $500,000 for eac h occur renc e and $1,500,000 ag g reg ate; and minimum insurance cover ag e for proper ty damag e must be $500,000 for eac h occur renc e and $1,000,000 ag g reg ate. The policies included in the rec ord of the proce eding toge ther
53contain an amount for insurance meeting the minimum amounts require d. The

g ener al liability policy

. . . contains the following cover ag e: $1,000,000 bodily injury cover ag e per occur

renc e and $10,000,000 ag g reg ate, and $1 , 0 0 0 ,000 proper ty damag e per occur

renc e and $10,000,000 ag g reg ate. Ex hibit 36 is the pollution policy with t he following cover ag e: $1,500,000 per pollution condition with $1,500,000 ag g reg ate.
Appellants arg ue that Finding of Fa ct 22 fails to state what activities are cover ed, that the Commi ssion failed t o address the distinction betwee n cover ag e “per occur renc e,” which the

cer tificate and finding ref

lect, and cover ag e “pe r p er son,” and that $1 milli on per occur renc e is insufficient. They also arg ue that the policy excludes cover ag e for s i l i ca re l ated injuries and that althoug h DRCP’s expert insurance witness testified that silica injuries are covered under the pollution policy , the expert was unable to g ive a defin i t e an swer as to whether silica could be excluded under the pollution policy as a natura lly occur ring s u b s t ance . Appellants contend that expert medical testimony that there is nothing in the rele vant scientific literature to sug g est that ty pical n o n-occ upational exposure to cry stalline silica would lead to respira tory disease “ca nnot

excuse [DRC P] from comply ing with the statutory provisions requiring adequate compensa tion for i n j u ries resulting from mining opera tions

. . . .” Appellants further arg ue that DRCP’s new 2 0 1 3 policy , obtained afte r the hear ing, excludes medical expenses and that there is no evidenc e that the
opera tor, Camino Real, which owns no assets, has the ability to pay the premiums. We do not find these a rg uments persua sive. Finding No. 22 addre sses DRCP’s compliance with require ments for liab i lity insurance

. The rec ord ref lects that the insurance p o l i ci es are for opera tions at the mine. Whil e Finding No. 22 does n o t s t at e t he activities cover ed, it is implicit from the Commi ssion’s other

54finding s of fac t that the insurance i s fo r surfa ce coal mining and rec lamation opera tions, and

we conclude that the final order sufficie ntly states the underly in g fac ts. See Tex. Gov’t Code § 2001.141(d) (req u i ri ng final order to include concise statement of underly ing fac t supporting finding s). Fur

ther, under TSMRC A sections 134.052 and 134.053, the Commi ssion has discretion
to deter mine whether the cer

tificate states cover ag e that is “ade quate” to compensa te a person who is damag ed and entitled to compensa tion under state law. Tex. Nat. Res. Code §§ 134.052, .053. Appellants have not p re s en ted any analy sis or citation to the rec ord in support of their asser tion that “per occur

renc e” cover ag e is insufficient and have theref ore waived that arg ument. S ee T ex . R. App. P. 38.1(1). E v en i f t h ey had not waived the arg ument, Rule 12.311 specifie s minimum

cover ag es “per occur

renc e,” and the rec ord ref lects that DRCP’s cover ag es ex ce ed the minimum require ments. Fur

ther, t h ere is no require ment in the TSMRC A or Commi ssion rules that the applicant provide evidenc e of sufficie nt assets to pay premiums. As for cover ag e for silica-re lated injuries, there was testimony that the cove rag e for

bodily injury was not limited to the permit are a and that it included cover ag e for injury from air pollution, including coal dust and silica. Appellants have not offe red any arg ument or citation to the rec ord to support their contention that DRCP’s new policy excludes medical pay ments and have there fore waived that arg ument. See id. We conclude that the rec ord contains substantial evidenc e to support the Commi ssion’s finding that DRCP obtained the require d insurance cover ag e. See Tex. Gov’ t Code § 2001.174; Texas Indus. Energy C o n sumers , 324 S.W .3d at 105; Mireles , 9 S.W .3d at 131. We overr ule the City ’s an d Ho s p i t al District’s issue I V.

55CONCLUSION
H a v in g o v e r r u le d A ppellants’ issues, we aff

irm th e d is tr

ic t c o u r t’ s ju d g me n t a f

f ir mi n g the Commi ssion’s final order g ranting the application of Dos Republicas Coal Partnership (DRCP) for r enew al, re vision, and expansion of its s urfa ce c oal mining a nd rec lamation permit.

__________________________________________ Melissa Goodwin, Jus tice
Be fore Chief J ustice Rose, Jus tices Goodwin a nd Field Affir med Filed: De cembe r 29, 2015

56