### 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. 03-14-00667- CV

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

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

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

O P I N I O N

I n this case of first impression, the T ex as Commi ssion on Environmental Quality contends that the two ty

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

. The Commi ssion appea ls from a trial court’s order deny ing its plea to the jurisdiction in a suit filed by app el l ee s Ex x on Mobil Corporation, Ex x onMobil Oil Corporation, Pennzoil -Qua ker State Company , and Shell Oil Co m p any (collec tively , “Exx onMobil and Shell”) challeng ing the VodaOrde r. On appea l, the Commi ssion asser ts that beca

use the supreme court in City of W aco conducte d

a substantial-evidenc e revie w in the absenc e of a contested- case or adjudicative hear ing, this Court should reve rse the trial court’s order deny ing the Commi ssion’s plea to the jurisdiction and rema nd the case with a find i n g t h at the courts should revie w the Voda Orde r only under the substantial-evidenc e standard provid ed i n S ection 361.321 of the Act, not the preponde ranc e-of

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

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

co n tends that (1) the Act establishes two separ ate ty pes of Superfund order s found in Sect i o n s 361.188 and 361.272 with distinct waiver s of immunit y foun d i n Sections 361.321 and Section 361.322, respe ctively ; ( 2) the Commi ssion issued the Voda Orde r only under Section 361.188 and there fore it is revie wable only under Section 361.321; and (3) courts lack subject-matter jurisdiction
to revie w the Voda Orde r under any section other than Section 361.321. Be cause we conclude that

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

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

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

judicial revie w). 2Section 361.322 applies to administrative order s issued by the Commi ssion under Section 361.188,

we will af

firm.

STATUT ORY F RAMEWORK A brief overvie w of Superfund leg islation will g ive context to our analy sis of the two ty pes of administrative orders at i s sue. The S olid Waste Disposal Act “is our st ate counterpa rt to
two fede ral environmenta l statutes: the Resource Conservation and Recovery Ac t (‘RCRA’), 42 U.S.C. §§ 6901–699 2 , and the Comprehensive Environmental Response, Compensation, and L iability Ac t (‘ C E R C L A’), 42 U.S.C. §§ 9601–9675.” R.R. Street & Co. v. Pilgrim Enters. , 166 S.W .3d 232, 238 (Tex. 2005). RCR A primarily reg ulates “on-g oing trea tment, storag e, and d i s p o s al of solid and hazardous wastes.” B.F. Goodrich Co. v. Murtha , 958 F.2d 1192, 1 2 0 1 (2d Cir.1992). CERCL A, on the other hand, i s a reme dial statute whose purpose is to fac ilitate a prompt response to a rele ase or s u b stantial threa t of a rele ase of hazardous substances into the environment, to provide broad authority for the clea nup of hazardous-substanc e sites, and to ensure that those responsible for t h e h az ardous substances bear the cost of their actions. United States

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

cause d t h e h ar m, see OHM Reme diation Servs. v. Evans Cooperage Co. , 116 F.3d 1574, 1578 (5th Cir. 1997). CERCL A cre ates a broad liability scheme that “extends liability all the way down the causa l chain, from those who g ener ate waste throug h those who dispose of it” and imposes strict liability that is joint and seve ral whe n the har m is indi visible. Id. at 1578-79.

3The Texas L eg isla ture enac ted the Solid Waste Disposal Act “to safe g uard the health,

welfa re, and phy sical proper

ty of the people and to protec t the environment by contr o l l i n g t he
manag ement of solid waste, including acc ounting for hazard o u s waste that is g ener ated.” Tex. Hea lth & Safety Code § 361.002(a) ; see also R.R. Street , 166 S.W .3d at 238. The Act orig inally only
reg ulated the collection, handling , sto rag e, and disposal of solid wastes throug h a permitting
prog ram. Solid Waste Disposal Act, 61st L eg ., R.S., ch. 405, 1969 Tex. Gen. L aws 1320 (“or igina l Act”) , repea l ed a nd recodified by Act of May 18, 1989, 71st L eg ., R.S., ch. 678, 1989 Tex. Gen. L aws 2230, 2612-64. The orig inal Act authoriz ed the responsible ag encie s to issue permits
g overning the opera

tion of and maintenanc e of solid-waste disposal sites and to establish minimum standards for the manag ement and con trol of solid waste. Orig inal Act at 1322-23. Whil e the orig inal Act imposed civil penalties for entities that violated its provisions and allowed any “per son aff ecte d by any ruling , order , decision, or other act of the depar tment or the bo ar d ” t o “a p p eal by filing a petition in the district court of Travis County ,” see orig inal Act at 1326-28, it did not

au t h o ri z e t h e issuance of administrative order s like the Voda Orde r. The orig inal Act did not empower the State to clea n up contaminated sites or to ord er t h e p er sons responsible for the contamination to pay

the cost of a

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

und prog ram withi n the ex isting s olid-waste permitting st atute. Act of May 27, 1985, 69th L eg ., R.S., ch. 566, 1985 Tex. Gen. L aws 2166-83, repeale d a n d r ec o d i fied by Act of May 18, 1989, 71st L eg ., R.S., ch. 678, 1989 Tex. Gen. L aws 2230, 2612-64. The curr ent Act allows the State to issue two differ ent ty pes of administrative order s, g iving it a broade r re ac h t h an

4CERCL A. One ty pe of administrative orde r conc erns ha zardous wastes only (“188 or der” ), while the other applies to solid waste, a ca t ego ry t hat includes but is not limit ed to hazardous wastes (“272 order” ). Tex. Hea lth & Safety Code §§ 361.188, .272; see also id. § 361.003(12) (defini ng “hazar dous waste” ), (34) (def ining “solid waste” ). L ike CERCL A, both ty pes of order s impose strict liability that is joint and sever al when the harm is indivisi ble. S ee id. §§ 361.187(f) (potentially responsible party ’s ultimate liability for rem ed i at ion deter mined under Subchapter I ), .276 (S u b ch apter I provision establishing that liability is joint and sever al if rele ase or threa tened rele ase is not prove d to be divisible).

Specifica lly , a 1 8 8 order conce rns the rele ase or threa tened rele ase of hazardous

wa s t es at a hazardous-w aste fac ility that prese nts an imminent and substantial endang erme nt t o public health and safe ty or the environment and should be listed on the state Superfund reg istry

. Id. § 361.188(a) (1). Under this ty pe of order , which is issued afte r an investiga tion/feasibility study and

a public meeting to discuss a proposed reme dial action, the State may order persons responsible for the rele ase or threa tened rele ase to reme diate the fac ility acc ording to a schedule established by the Commi ssion. Id. § 361.188(a) (3), (4), (6), (7). Under a 272 order , the C ommissi on may restra in
persons responsible for solid waste from allowing or continuing the rele ase or threa tened rele ase of solid waste tha t presents a n imminent and substantial endang erme nt to public health and safety or the environment and may require those persons to implement a rem ed i al action plan desig ned to eliminate the rele ase or threa tened rele ase (“272 order ”). Id. § 361.272(a) -(b)

. We will examine in

more detail below the interac tion o f t h e t wo Subchapter s of the Act containing these two order ing pr ovisions.

5F ACTUAL AND P ROCEDURAL BACK GR OUND The Voda Site is on approximately six acr es l ocate d in Gre g g County , Texas. The Site was used by Voda Petroleum, I nc. as an oil-blending and oil-rec y cling fac ility from about 1981
to 1991, when opera tions cea sed and the Vo d a S i t e wa s abandone d. I n the mid-1990s, both the Environmental Prote c ti on Ag ency and the prede cessor ag ency to the Commi ssion (the Texas Natura l Resource s Conservation Commi ssion) investiga ted the Site to deter mine whether Voda Petroleum’s
opera tions had resulted in the rele ase of hazardous substances. The EPA conducte d a remova l action i n 1996, althoug h the Site’s ranking was too low to qualify the Site for the fede ral Superfund
prog ram. After the remova l action, the EPA soug ht rec overy of its costs and eventua lly enter ed into administrative order s o f consent with companies it had named as potentially responsible parties; those order s established how much those parties owed the EPA. I n 1999, the EPA ref err ed the Voda Site to the St ate of

Texas for any

further reme dial action re quired unde r state a uthority

. I n November 2000, the C om m i s sion’s prede cessor ag ency proposed the Voda Si te for listi ng on the state Superfund reg istry and notified parties that it believed had shipped materia ls
to the Voda Site that they wer e potentially responsible for investiga tion and reme diation of the Site, including providing them with notice that they could make a g ood-fa ith offe r to conduct a reme dial investiga tion and fea sibili ty study

. Sev er al p arties submitt ed written comments and objections, complaining that no empirica l data supported finding imminent and s u b s tantial endang erme nt or listi ng the Voda Site on th e s t at e S u p erfund reg istry

. No g ood-fa ith offe r to conduct the investiga tion was rec eived, so the Commi ssion conducte d the reme dial investiga tion and fea sibili ty study and propose d a re medial ac tion.

6After public notice and c omment sug g esting alterna tive reme dies, the Commi ssion studied other a lternatives. I t a lso pr ovided the potentially responsible parties with the opportunity to f und or conduct the reme dial action, but no good- faith off er to do so was rec eived and acc epted by the Commi ssion, so no ag ree d order was issued. At a public meeting , the Commi ssion considere d what it descr ibed on the meeting ag enda as “a Final Administrative Orde r (F inal Orde r) pursuant to Texas Hea lth and Safety Code Sections 361.188 and 3 6 1

. 2 7 2 for the Voda Petroleum, I nc. State Superfund Site.” Although some potential ly responsible parties wer e allowed to addre ss the Commi ssioners, th ey we re not allowed to prese nt evidenc e to the Commi ssion and they wer e informed that “the law g overning this case does not provide for an adjudicator y hear ing at this time.” The Act contemplates that Superfund order s may be issued without holding any adjudicative hear ing both in Subcha

pter F, which outlines the proce ss f or issuing an administrative order under Section 361.188, see id. §§ 361.184(e) , .187(c) , and in Section 361.274, which expli citly states that “[a]n administrative order under Section 361.272 does not require prior notice or an adjudicative hear ing befor e the c ommissi on,” id. § 361.274.

On Fe bruar

y 12, 2010, the Commiss ion issued a unilatera l administrative order for the Vo d a S i t e “to require persons responsible for such solid wastes or hazardous substances to perf orm the Work, including conducting the Remedial Activities, as authorized by Sections 361.188 and 3 6 1 . 2 7

2 of the Act.” (Emphasis added) ; see id. §§ 361.188 (establishing contents of final ad minist rative order to be issued by Commi ssion afte r consideration of all g ood-fa ith off er s t o perf orm reme dial action at hazardous-w as t e facility deter mined to pose imminent and substantial endang erme nt to public health and safe ty or to environment), .272 (providing that Commi ssion may

7issue administrative order to person responsible for solid waste if it appea rs there is actual or threa tened rele ase of solid waste that prese nts imminent and subst an t i al endang erme nt to public health and safe ty or to environment). The Voda Orde r named Ex x onMobil and Shell as potentially responsible par ties, along with approximately 350 other entities, and order ed them to pay the Commi ssion’s response c osts for clea nup of the Voda

Site. Ex x onMobil and Shell filed suit appea ling the Voda Orde r in Travis County District Court, challeng ing the Commi ssion’s actions under the Act and seeking decla ratory relief under the Texas Uniform Dec lara tory J udg ments Act, see Tex. Ci v . P ra c. & Rem. Code § 37.001. The Com m ission filed a counter -petition and third-par ty petition seeking cost rec overy ag ainst Ex x onMobil and Shell and other poten t i all y responsible parties, see Tex. Hea lth & Safety Code § 361.197(d) (re quiring Commi ssion to file cost-re cover y action ag ainst eac h responsible party for total costs of reme dial actions taken by Commi ssion using funds from Hazardous and Solid Waste Remediation Fe e Acc ount established in Section 361.133); enfor ceme nt of the order under Sections 361.321 and 361.322(g ), see id. §§ 361.321(e) (except as provided by Section 361.322, “in an appea l from an action of the commission

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

unrea sonable” ), 361.322(g ) (i n appea l of administrative order , Commi ssion must prove by preponde ranc e of evidenc e that “(1) there is an actu al o r threa tened rele ase of solid waste or hazard o u s s u b stance s that is an imminent and substantial endang erme nt to the public health and safe ty or the environment; and ( 2) the pe rson made subje ct to the administrative order is liable for the elimination of the rele ase or threat en ed rele ase, in whole or in part” ); injunctive relief ,

8see id. § 361.273(2); and its attorney s’ fee s and costs, see id. § 361.341; Tex. Water Code § 7.108;

Tex. Gov’t Code § 402.006(c)

.

The parties proce ede d t o co nduct discovery for the next few y ear s. Then, approximately four y ear s afte r the case was filed, the Commi ssion f iled its plea to the jurisdiction. I n its plea and reply , it asser ted that (1) a Superfund order can be issued under either Section 361.188

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

sovere ign immunit y for 188 order s. Acc ording ly , the Commiss ion asserte d, judicial revie w under
any other standard would violate the s ep ar at ion-of-pow ers doctrine. Ex x onMobil and Shell

res p o n ded that (1) nothing in the Act supports a conclusion that an administrative order may be issued only under Section 361.188 or Section 361.272, but not both; (2) the Voda Orde r was issued under both Sections; (3) beca use the Voda Orde r was issue d u n d er b o th Sections, it should be revie wed under the preponde ranc e-of -evide nce standard provided for in Section 361.322 ; a n d (4) the
separ ation-of- power s doctrine does not bar judicial revie w under Section 361.322 beca use the order is not a quasi-leg islative act and thus the L eg islature is not prohibited f rom authorizing its judicial revie w via trial de novo. I n addition, Ex x onMobil and Shell contende d that the Commi ssion’s plea did not impl icate the trial court’ s subject-matter jurisdiction because the Commiss ion sought only

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

9sovere ign immunit y found in the appellate provisions of the Act. T he trial court denied the

Commi ssion’s plea to the jurisdiction. This appea l followed.

ANALYSIS I n three issues on appea l, the Commi ssion asser ts that (1) the Act allows two differ ent ty pes of Superfund order s, 188 order s and 272 order s, which are s ep ar at e and distinct and have individual waiver s of immunit y and differ ent s t an d ards of revie w under Section 361.321 and Section 361.322, respe ctively , and a single order cannot arise under both sections; (2) it issued the Vo da Orde r only under Section 361.188 of the Act and there fore it may only be revie wed u n d er Section 361.321’s substantial-evidenc e standard; a nd (3) c ourts lack subjec t-matter jurisdiction to revie w the Voda Orde r under any section other than Section 3 6 1

. 3 2 1 b ec ause of the doctrine of

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

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

DeQue en , 325 S.W .3d 628, 635 (Tex. 2010). Our primary objective when construing statutes is to give e ffe ct to the L eg islature’s intent, which w e seek first and foremost in the text of the statute. First Am. Titl e Ins. Co. v. Combs , 258 S.W .3d 627, 631-32 (Tex. 2008). The plain meaning of the text is the best expression of leg islative intent, unless a differ ent meaning is appar ent from the context or application of the plain lang uag e would lead to ab s u rd re s ults. Molinet

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

10inappropria te t o resor t to rules of construction or extrinsi c aids to construe the lang uag e.” City of Rock wall v. Hughes , 246 S.W .3d 621, 626 (Tex. 2008).

Moreove r, we deter

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

as a whole and interpre t it to g ive eff ect to ever y part.’” State ex rel. State Dep’ t of Highways & Pub. Transp. v. Gonzalez , 82 S.W .3d 322, 327 (Tex. 2002) (quoting Jones v . Fowler , 969 S.W .2d 429, 432 (Tex. 1998)). Consequently , when considering the interplay of the various Sections of the Act,

we must consider their role in the broader statutory scheme

. See 20801, Inc. , 249 S.W .3d at 3 9 6

. Wit h these principles in mind, we turn to consideration of the two ty pes of Superfund order s that the Act allows the Commission to i ssue.

188 orders Section 361.188 is found in Subchapter F, which cover s the reg istry and clea nup of

cer tain hazardous-w aste fa ci l i t i es . See Tex. Hea lth & Safety Code §§ 361.181-.203. Under this Subchapter , the Commi ss i o n i s require d to annually publish an updated state reg istry identify ing those fac iliti es “that may constitute an imminent and substantial endang erme nt to public health and safe ty or the environment due to a rele ase or threa tened rel ea s e o f h azardous substances into the environment” and identify ing the rel at i ve priority for action at eac h listed fac ility

. Id. § 361.181. Subchapter F further establishes a proce ss by which the Commi ssion may investiga te listed fac iliti es

or fac iliti es that the executive direc tor has rea son to believe should be listed on the re gi s t ry . Id. § 361.182.

11Subchapter F empower s the executive d ir ector to submit reque sts for information and

document production to persons who may have rele v an t i nformation. Id. § 361.182. The Commi ssion may not list a fac ility on the reg istry if the potential endang erme nt can be resolved by the owner or operator; som e or all of t he potentially re s p o n s i ble parties identified i n Subchapter I (which deals with enfor ceme nt), see id. § 361.271 (def ining person responsible for so l i d wa ste), under an ag ree d administrative order issued by the Commi ssion; or a voluntary clea nup ag ree ment under Subcha

pter S. Id. § 361.183. I f, howeve r, the executive direc tor deter mines that a fac ility is elig ible for listi ng on the state reg istry , the Commi ssion must publish notice of its inte n t to list the fac ility and allow interested parties to submit written comments and reque st a public meeting to discuss the proposed listi ng . Id. § 361.184(a)

. Fur thermore , the executive direc tor must “make all rea sonable eff orts to identify all potentially responsible parti es for reme diation of the fac ility ” and notify them of the proposed listing a

nd proce dure f

or requesting a public mee ting, a s well as notice of the meeting if one is reque sted. Id. § 361.184(b)- (c)

.

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

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

for potentially

responsible pa

rties to contest liability

. After the public meeting (or opportunity to reque st it has passed) and befor e the Commi ssion lists the fac ili t y on the reg istry , it must allow all identified potentially responsible

12parties the opportunity to fund or conduct “a reme dial investiga tion/feasibility study .” Id. § 361.185. I f a g ood-fa ith offe r from all or some potentially responsible parties is rec eived within 90 day s afte r the Commi ssion issues notice of the potential listi ng , then those making the offe r have an additional 60 day s to negot i at e an ag ree d administrative order from the Commi ssion, which must include a scope of work but which “may not r equire the participa ting potentially responsible parties to ag ree to perf orm the reme dial action or admit liability fo r the fac ility reme diation.” Id. § 361.185(a)

. Section 361.185 empower s the Commi ssion to conduct or complete the study using funds from the hazardous-w aste disposal-fee fund if no g ood-fa ith offe r to do so is rec eived. Id. § 361.185(b). This Section also encour ag es potentially responsible parties to perf orm the study by providing that costs for Commi ssion oversi gh t of the study may not be assessed ag ainst those parties who fund or perf orm the study , but full costs for Commi ssion oversig ht may be assessed ag ainst nonparticipa ting potentially responsible p ar t i es “who are ultimately deter mined to be liable for reme diation of the fac ility under [ the Act] or who subsequently enter into an agr eed order relative to the r emediation of the fa cility .” Id. § 361.185(c)

.

Subchapter F further provides the Commi ssion with th e ability to selec t, afte r a public meeting , the appropr iate land use (i f o t h er t h an residential) for the land upon which a fac ility is located that is the s u bject of a remedial i nvestig ation/fea sibili ty study for the purpose of selec ting

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

remova l action may be perf ormed at a fac ility elig ible for listi ng o n t h e re gi stry and whether an

owner o r o p er at o r may substantially chang e the use of the fac ility so that any chang e does not interfe re w ith a proposed or ong oing r emedial investig ation/fea sibili ty study

. Id. § 361.186.

13After the reme dial investiga tion/feasibility study is complete, the executive direc tor

must selec t a proposed reme dial action, and the Commi ssion must hold a public meeting to discuss the proposed action. Id. § 361.187(a)

. Ag ain, notice of the meeting must be provided to eac h potentially responsible party , but the public meeting is leg islative in nature and not a contested- case hear ing and i s held for the purpose of obtaining “additional information reg arding the facility and the identifica tion of additional potentially responsible pa

rties.” Id. § 361.187(b)- (c)

. Whil e those in attendanc e may comment on the proposed action, and the executive direc tor may choose to revise the proposed reme dial action in light of the prese ntations, t h i s m ee t ing does not provide an opportunity

for potentially

responsible pa

rties to challeng e liability

. See id. § 361.187(c)

. After the public meeting , the Commi ssion must allow all iden t i fi ed potentially responsible parties the o p p o rt u n ity to fund or perf orm the proposed reme dial action. Id

. § 361.187(d). I f a g ood-fa ith offe r from all or som e potentially responsible parties is rec eived within 60 day s after

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

orm the reme dial action by providing that costs for Commi ssion oversig ht of the action
may not be assessed ag ainst t h o s e p arties who fund or perf orm the action, but full costs for Commi ssion o v e r s ig

h t ma y b e a s s e s s e d a g a inst nonparticipa ting potentially responsible parties “who

are ultimately

deter mined to be liable for

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

.

14This Section further provides that the executive direc tor may authorize a potentially

responsible party to c onduct a partial reme dial action if (af ter notice and opportunity for c omment
to all other potentially responsible p ar t i es ) t he executive direc tor deter mines that the rele ase or threa tened rele ase is “divisible.” Id. § 361.187(f)

. The Section define s “divisible” as meaning “that the hazardous substance rele ased or threa tened to be rele ased is capa ble of being manag ed separ ately under the reme dial action plan,” but it specific ally provides that “[a] deter mination of divisibi lity by the executive direc tor does not have res judicata or collater al estoppel eff ec t o n a p o t entially responsible party ’s ultimate liability for reme diation of the fac ility u n d er Subchapter G [‘ E n f o r c e me n t; Cr im in a l a

nd Civil Penalties [R epea led]’] or I [‘Enforce ment; Administrative Orde rs Concerning I mminent and Substantial Endang erme nt’].” Id.

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

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

ties determined to be responsible for reme diating the fac ility ; (5) make finding s of fac t descr ibing actions voluntarily un d er t ak en by responsible pa

rties;

15(6) o rd er the responsible parties to reme diate the fac ility and, if appropr iate, reim b u rs e the hazardous waste disposal fee fund for reme dial investiga tion/feasibility

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

deter mination of divisibi lity

of re sponsible party

liability ; and (9) g ive notice of the duties and restric tions i mposed by Section 361.190 [“Change in Use of L isted Fa cility ”].

Id. § 361.188(a)

. I n addition, this Section establishes that “[t] he provisions in Subchapter s I , K, and L relating to adm inis trative orders apply to order s issued under this section.” Id. § 261.188(b) (footnote omitted) (empha sis added) ; see al s o i d. §§ 361.271-.279 (Subchapte r I : Enforc ement; Ad m inistrative Orde rs Concerning I mminent & Substantial Endang erme nt); 361.321-.323 (Subchapte r K: Appe als; J oinder of Par ties); 361.341-.345 (Subcha pter L : Cost R ecove ry

).

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

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

. Section 361.272 allows the Commissi on to:

16(a)

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

this section to: (1) restra in the person from allowing or continuing the rele ase or threa tened r elea se; and (2) require the person to take any action necessar y t o p rovide and implement a cost eff ective an d en v ironmentally sound reme dial action plan desig ned to eliminate the re lease or threatened r elea se.

Id

. § 361.272(a) -(b)

. I n addition, the Commi ssion may sue for injunctive relief to restra in a responsible person from allowing or continuing the rele ase or threa tened rele ase and to require the person to take actions nece ssary to provide and imp l em en t a reme dial action plan. Id. § 361.273. Subchapter I also specific ally establishes that “[a]n administrative order under Section 361.272 does
not require prior notice or an adjudicative hear ing befor e the commission.” Id. § 361.274. Section 361.275 enumer ates the defe nses t o liability and st ates that a person re sponsible for solid waste is liable under Section 361.272 or 361.273 unless the person can establish by a preponde ranc e of the evidenc e that the rele ase or threa tened rele ase was cause d solely by an act of God, an act of war , an act or omission of a third person, or any combinat i o n o f t h o se events. Id. § 361.275(a)

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

17a preponde ranc e of the evidenc e to be divisibl e and provides that if it is not proved divisibl e, persons

liable under Section 361.272 or 361.273 ar e jointly and seve rally

liable for e liminating the re lease

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

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

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

Issui ng an order und er both Sect ions The Commi ssion contends that the two ty pes of Superfund order s are mutually exclusive and one administrative order cannot be issued under both provisions, but nothing in either the specific provisions or in the overa ll context of the statutory scheme leads to that conclusion. We
p r e s u me that the L eg islature chooses a statute’s lang uag e with car e, purposef ully choos in g e a c h w o r d it includes, while purposef ully omitti ng words not chosen. TGS-NOPEC Geophy sical Co. v. Combs , 340 S.W .3d 432, 438-39 (Tex. 2011). I f the L eg islature had inte n d ed t o make the two order s mutually exclusive, it would have said so. I nstead, it cra fted a statutory scheme under which the Commi ssion is empower ed (1) to issue an order that results in a hazardous-w aste fac ility being listed

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

tion/feasibility study and selection o f a re m ed i al action and (2) to issue an order to
restra in a rele ase or threa

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

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

. I n fac t, allowing t h e C o m m i s s ion to issue an order under both Sections

18361.188 and 361.272 comports wit h the Act’s purpose o f protecting the environment by allowing

the Commi ssion to include the broade r cate g ory of “solid waste” in an order listi ng a site on the state Su p e rfund reg istry , which means it may be able to include more potentially responsible parties, whi le having the two order s in separ ate sections g ives the Commi ssion the flexibi lity to issue a 272 order without g oing throug h the 188 proce ss. We conclude that it is possible for the Commi ssion to issue one orde r under

both Sections 361.188 and 361.272.

Sub chapter K : appeals; joinder of p artie s Subchapter K contains Sections 361.321 and .322, both o f wh i ch conce rn appeals, and S ection 361.323, a provision conce rning joinder of parties in an inj unction action filed by the State under Section 361.273. At issue is whether a 188 order is g overne d by S ec t i o n 3 6 1

. 321 or Section 361.322. Section 361.321 establishes a substantial-ev id e n c e s ta ndard of revie w under which the appea ling party must prove that the Commi ssion’s action “is invalid, arbitra ry , or unrea sonable,”

see id. § 361.321(e) , while Section 361.322 mandates that when a person subject to an administrative order appea ls the order

by filing a petition:

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

nce of the evidenc e that: (1) there is an actua l or threa tened rele ase of solid waste or hazardous substances that is an imminent and substantial endang erme nt to the public health and safe ty or the e nvironment; and (2) the person made s u b j ec t to the administrative order is liable for the elimination of the rele ase or threa tened r elea se, in whole or in pa rt.

19Id. § 361.322(g ). I n addition, Section 361.322 provides that “[i] f the appropr iateness of the selec ted

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

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

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

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

I n this case , the lang uag e found in Section 361.188 is clea r: “The provi s i ons in Subchapter s I , K, and L relating to adm inis trative orders apply to order s issued under this section.” Tex. Hea lth & Safety Code § 361.188(b) (footnote omitted) (empha sis added)

. Section 361.322

conce rn s ap p ea l s of administrative order s issued under Section 361.272. Of the two appellate provisions, it is the only one that relates to adm inis trative orders

. The Commi ssion conce des that the deadline for appea l and the stand ards of revie w in Section 361.322 “re late to administrative order s,” see id. § 361.188(b), but it arg ues that apply ing the deadl i n e and standards of revie w to 188 order s would lead to absurdities. I t makes the circ ular arg ument that beca use the deadlines for
appea l and standards of revie w are differ ent for eac h ty pe of order , the order s must be separ ate and distinct, and “the L eg islatur e w o u ld not have delibera tely written a statute providing for two differ ent

20deadlines for the appea l of a single order , or two differ ent standards of revie w for a single element,

such as liabili t y , wi t h in an order .” We ag ree that the L eg islature would not delibera tely write a statute providing two differ ent deadlines for appea ling one order or two differ ent standards of revie w for an element of an order

. Having alre ady conclude d that one order can be issued under both S ec t i o n s , howeve r, we further conclude that under a plain rea ding of Section 361.188(b), t h e L eg islature expressed its intent that both Sections 361.188 and 361.272 should be g overne d by one set of dea d lines for appea l and standards of revie w—those that are found in Section 361.322. There fore , we need not use any other canon of construction, such as which statute is more specific ,
or other aids, such as leg islative history , to construe the Act and an s we r t h e question of which appellate provision applies to 188 order s. See F irst Stat e Bank

of DeQue en , 325 S.W .3d at 639. M o r e o v e r , w e n o te that other lang uag e in both Sections 361.321 and 361

. 3 2 2 s u p p o r ts this int erpr etation. Section 361.322 spec ifically provides that “[t]he filing of the [appeal] petition does not preve nt the commission from proce eding with the reme di al action prog ram under Subchapter F [i .e., the proce ss that culminates in a 188 order ] unless the court enjoins the reme dial action under its g ener al equity jurisdiction.” Tex. Hea lth & Safety Code § 361.322(e)

. “Ha zardous substances,” the only materia ls reg ulated by 188 order s (as opposed to “solid waste,” which Section 361.272 ref

ers to), are included as part of the preponde ranc e-of -the-e vidence standard of revie w, see id. § 361.322(g ) (Commissi on must prove “ac tual or threa tened rele ase of solid waste or hazardous substances” ), and in the descr i p t i o n o f p arties who must be joined, see id. § 361.322(d) (per son appea ling must join “any other person who i s or m ay b e l i ab le for the elim ination of t he actual or threa tened relea se of solid waste or hazardous subst anc es g overne d by the admini strative order”)

.

21Section 361.321 specific ally ref eren ce s S ection 361.322, stating that “ [e] xcept as provided by Section 3 6 1 . 3 2 2

[g] ,” the issue in an appea l from a Commi ssion action is whether the action is invalid, arbitra

ry , or unrea sonable. Id. § 361.321(e) (empha sis added)

. And Section 361.322 (h) provides that “[i]f the appropria teness of the selec ted remedial action is contested in the a ppeal of the administrative order , the reme dial ac t i o n shall be upheld unless the court deter mines that the

reme dy is arbitra

ry or unrea sonable,” meaning that the portion of a 188 order t h at h as b een develope d b y the C ommissi on using its expertise will be reviewe d under the substantial-evidenc e standard, and so it is only the elements found in Section 361.322(g ) that the Commi ssion bear s the burden of proving by a prepondera nce o f t h e evidence. Id. § 361.322(h). Considering the s tatute

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

overr ule the Commissi on’s first issue. Although this conclusion means that we n ee d not rea ch the Commi ssion’s second issue cont ending t hat i t issued the Voda Orde r onl y under Section 361.188, we note that the pl ain lang uag e of the Voda Orde r indicates that it wa s issued under both Sec tions 361.188 and 361.272. See Office of Pub. Util. Counsel v. Texas- New Mex ico Pow er C o. , 344 S.W .3d 446, 450-51 (Tex

. App.—Austin 2011, pet. denied) (cour ts apply same rules when construing order of administrative
ag ency that are applied when construing statutes). I n addition to the in t ro d uctory lang uag e at the beg inning of the Orde r, there are provisions throug hout the Orde r that indicate it was issued under Section 361.272 as well as Section 361.188, includi n g refere nces to “solid waste,” not just “hazar dous s u b s t an ces.” We also note that the Commi ssion conducte d itself in the trial court for four y ear s as if the Or der w ere appea lable under Section 361.322, not just S ection 361.321. Af ter

22issuing an order incorpora ting both Sections and proce eding for y ear s as if the parties would try the

case under a preponde ranc e-of -the-e vidence standard, the Commi ssion’s reve rsal of p o s ition for strateg ic re asons does not cha ng e the e ssential nature of the Voda Orde r.
Sovereign im m uni ty I n its third issue, the C ommissi on does not dis p u t e t hat bot h Sections 361.321 and 361.322 contain waiver s of immunit y beca use th e L egi s lature has confe rre d a rig ht of judicial revie w; instead, it asser

ts that courts lack subject-matter jurisdiction to revie w the Voda Orde r under
any section other than Section 361.321. We overr ule this issue based on our conclusion that Section 2 361.322 applies to 188 order s.

Ex x onMobil and Shell asser t on appea l that this Court lacks jurisdiction to hear the appea l, 2 essentially reur g ing their arg ument that t h e Commi ssion’s plea did not implicate the trial court’s subject-matter jurisdiction beca use the Commi ssion did not challeng e the waiver of sovere ign immunit y found i n the appellate provisi ons of t he Act and ins tead sought only a decision on what standard of revie w the trial c ourt should use. Our jurisdiction over this case is derived from Civil Practice and Remedies Code Section 51.014(a) (8), which permits the interl o c u to r y a p p e a l o f a n order deny ing a plea to the jurisdiction by a g overnme ntal unit. That is the proce dural posture of this case . More importantly , the substance of the Commi ssion’s challeng e is that Section 3 6 1 .322 does not contain a waiver of immunit y for the t y p e o f ad minist rative order issued in this case . “The re is [gene rally ] no rig ht to judicial revie w of an administrative order unless a statute expli citly provides that rig ht

. . . .” Houston Mun. Emps. Pension Sys. v. Ferrell , 248 S.W .3d 151, 1 5 8 (Tex. 2007). Whil e answe ring that question here may have the eff ect of deter

mining which stand ard of revie w applies, the answe r itself implicates the trial court’s jurisdiction. The Texas Su p re m e Court’s decision in City of W

aco does not chang e our analy sis of the statutory provisions at issue in this case . S ee Texas Comm’n on Envt’l Quality v. City of W aco , 413 S.W .3d 409, 411, 415, 420, 424 (Tex

. 2013) (re viewing Commi ssion’s denial of a contested- case hear ing reque st in a permitting matter for an abuse of discretion when the underly ing statute did not specify a standar d o f revie w and when party seeking contested- case hear ing “wa s aff orded sever al opportunities to m ak e a rec ord in the ag ency ”). 23CONCLUSION Having conclude d that Section 361.322 applies to administrative order s issued under both Sections 361.188 and 361.272 and that Secti o n 3 6 1.322 contains a waiver of sovere ign immunit y , we a ffirm the tria l court’s orde r deny ing the Commi ssion’s plea to the jurisdiction.

__________________________________________ Cindy Olson Bour land, J ustice Be fore J ustices Pury ear , Pemberton, and B ourland Affir med Filed Apr il 8, 2016

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