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

ON MOTION F OR REHEARING

NO. 03-12-00335- CV

The Texas Com m ission on En vironm ental Quali ty and Waste Control Specialists, LLC, Appellan ts

v. Sierra Club, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 98TH JUDICI AL DISTRICT NO. D-1 -GN-0 9-0 0089 4, H ONO RAB LE LO RA J. LI VINGSTO N, JUDGE P RESIDING

O P I N I O N

We withdraw our opinion and judgme nt dated April 18, 2 014, and substitut e the following opinion a

nd judgme nt in their place

. Appellee Sierra Club’s motion for rehe aring is denied. Appellants the Texas Commi ssion on Environmental Qualit y (TCEQ) and Waste Control Specialists, L L C (WCS ) appea l from a district-court judgme nt that reve rsed a TCEQ order g ranting WC S a low-leve l radioa ctive waste disposal license. Sierra Club s o u gh t judicial revie w o f TCEQ’s order on the g rounds that TCEQ err ed by issuing the license befor e WC S had title to the rele vant proper ty interests and by denying Sierra Club’s contested- case hear ing reque st. The district court ag reed wi t h S i er ra Club that it was err or to deny the hear ing reque st, reve rsed TCEQ’s order on that g round, and rema nded the case for a contested- case hear ing on the merits ofWC S’s application. On appeal, TC EQ and WC S challeng e the distric t co u rt ’s judgme nt, arguing

that (1) TCEQ p ro p er ly denied Si err a C lub’s hear ing reque st, and (2) the di strict court should not have allowed Sierra Club to supplement the administrative rec ord. For the rea sons explained below,

we r ever se the district cour t’s judgme nt and re nder judg ment aff irming TCEQ’ s order

.
BACK GR OUND WC S is a waste- control company specia liz ing in the treatment, storag e, and disposal of radioa ctive, hazar dous, and mix ed wa ste. WCS holds licenses t o dispose of i ndustrial and hazardous waste a

nd to proce ss, store, and dispose of radioactive material at a 36-acre wasted i s posal fac ility in Andre ws County , Texas. WC S’s disposal fac ility , which is situated wit h i n a 14,900-ac re former ranc h that extends into L ea C o u n t y , New Mexi co, is about 25 fee t east of the Texas–New Mexi co border , five miles east of Eun i ce , Ne w M ex ico, and 30 miles west of Andre ws, Texas. 1

I n Aug ust 2004, WC S filed an application with TCEQ for a license to construct and
operate two fac iliti es on its ranc h proper ty for the near -surfa ce land disposal of low-leve l radioa ctive
waste. See Tex. Hea lth & Safety Code §§ 401.101 (re quiring li ce nse for disposal of radioa ctive

2

This fac ility has been and is the subject of n u m er ous lawsuits. See, e.g. , Sierra Club 1 v. Texas Comm’n on Envtl. Quality , No. 03-11-00102- CV (Tex. App.—Austin Dec. 30, 2014, no pet. h.), available at http:// www.txcour t s . go v //3rdcoa; In re Sierra Club , 420 S.W .3d 153, (Tex. App.—El Paso Nov. 28, 2012, orig

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

. 14 , 2 0 1 2 , orig

. proce eding , mem. op.); In re Sierra Club , No. 08-12-00282- CV, 2012 WL 59497 8 9 (T ex. App.—El Paso Nov. 28, 2012, orig . proce eding , mem. op.). L ow-leve l radioa ctive waste is a broad cate g ory of waste define d by statute, see Tex. Hea lth 2 & Safety Code § 401.004, but it can be descr ibed simply , albeit circ ularly , as all radioa ctive wast es t h at are not classified as high- level radioa ctive wastes, including high- level wastes such 2waste) , .201 (direc ting TCEQ to regulate disposal of low-leve l radioa ctive materia ls), .202 (g ranting

TCEQ licensing authority over disposal of l o w- l evel radioa ctive waste)

. The first of WC S’s proposed fac iliti es will rec eive and dispose of commerc ially -g ener ated waste from Texas and Ver mont as well as other waste approve d for importation to Texas b y t h e T ex as L ow L evel Radioactive Waste Disposal Compact Commi ssion. The second proposed fac ility will rec eive and 3 dispose of low-leve l radioa ctive waste that is the responsibility of the fede ral g overnme nt under the fede ral L ow L evel Radioactive Waste Poli cy Act and its amendments. See 42 U.S.C. § 2021b–j (provisions of fe dera l act) ; see also Tex. Hea lth & Safety Code §§ 401.2005(4) ( defining “fe dera l fac ility waste” ), .216 (g ranting TCEQ authority to license fe dera l-fac ility waste disposal). After decla

ring WC S’s appli cation administratively complete in Fe bruar y 2005, TCEQ beg an its technica l revie w of the application, including prepa ration of a written analy sis of the fac iliti es’ eff

ect on the environment. See generally Tex. Hea lth & Safety Code §§ 401.101–.119

as “spent rea ctor fuel, wastes from repr ocesse d rea ctor fuel, uranium mine and mill tailings or items contaminated with specifie d levels of transura nic elements,” H.R. Rep. No. 314, 99th Cong., 1st Sess., pt. 2, at 15 (1985). Ex amples of low-leve l radioa ctive waste include medical clothing and laboratory g lasswar e. Offic e of Tec h. Assessment, OTA-0- 426, Partnership Under Pressure: Manag ing Commercial L ow-L evel Radioactive Waste (1989); National Council on Radiation Prot. and Mea s u reme nts, NCRP Comm. No. 5, Review of the Publication, L iving Wit hout L andfills (1989). The fede ral L ow L evel Radioactive Waste Policy Act, as amende d in 1985, see 42 U.S.C.

3 §§ 2021b–2021j, require s eac h state to provide for the dispos al of low-leve l radioa ctive waste g ener ated within its border s, see id. § 2021c. That same leg islation e ncoura g es states to e nter into ag ree ments with other states to establish low-leve l radioa ctive waste disposal sites. See id. § 2021d. The Tex as-Ve rmont Compact, as i ts name sugg ests, is an ag ree ment betwee n Texas and Ver mont that require s Texas to develop, operate, and maintain, f or compe nsation, a fac ility for the disposal of Texas and Ver

mont wastes. See Texas L ow-L evel Radioactive Waste Disposal Compact Consent Act, Pub. L

. No. 105-236, 112 Stat. 1542, 1542–43 (codifie d at 42 U.S.C. § 2021d (2006)) (text of ag ree ment); Tex

. He al t h & Safety Code §§ 403.001–.006 (“Te x as L ow-L evel Radioactive Waste Disposal Compact”). The Texas L ow L evel Radioactive Waste Disposal Compact Commi ssion was cre ated by and is responsible for administering the provisions of the Texas-Ver mont Compact. See Tex. Hea lth & Safety Code §§ 403.005 (powe rs and duties of commission), .006 (text of compac t). 3(g ener al provisions reg arding licensing and reg istration), .2005–.251 (provisi ons specific to lowlevel radioa ctive waste d i s p o s al ); 30 Tex. Admin. Code §§ 336.701–.747 (TCEQ rules reg arding lo w - le vel radioa ctive waste disposal licensing ); 30 Tex. Admin. Code §§ 336.801–.825 (TCEQ ru le s reg arding compac t waste disposal fac i l i ty application selec tion proce ss). TCEQ reta ined the University of Texas Bur eau of Economic Ge o l o gy and Texas A& M University ’s Depa rtment of Nuclea r Eng ineer ing to assist with the environmenta l analy sis. During the revie w, which took place

over three y ear s, TCEQ notified WC S of numerous problems and defic iencies with the application, and WC S addre ssed the defic iencies in various supplements to its orig inal license applicat ion. TCEQ’s draf

t environmenta l analy sis, which was completed in Aug ust 2008, included the following require d information:
(1) an assessment of radiologica l and nonradiological ef fec ts of t he activity on the public hea lth; (2) an assessment of any eff ect on a water

way or g roundwater resulting from the activity ; (3) consideration of alternatives to t h e activit ies to be conducte d under the license; a nd (4) consideration of the long- term eff ects associate d with activities, including decommissioning, decontamination, and rec lamation impacts, including the manag ement of low-leve l radioa ctive waste, to be conducte d under the license.

Tex. He alth & Safety Code § 401.113(c) ; see id. § 401.231 (conte nts of administratively complete application for low-leve l radioa ctive waste disposal license) ; 30 Tex. Admin. Code § 336.705

4(TCEQ rule reg arding contents of application for low-leve l radioa ctive waste application). The 4 environmenta l analy sis conclude d that WC S’s proposed fac ility wa s “ade quate to protec t the public health and s af

ety in that [i t] provides reasonable assura nce that the gene ral population will be protec ted from rele ases of radioa ctivity ” as require d by TCEQ regulations. See 30 Tex. Admin. Code §§ 336.1–.1317 (Radioac tive Substances Rules).

Ba sed o n t h e technica l revie w of WC S’s application, TCEQ’s Ex ecutive Direc tor conclude d that WC S’s final application met the rele vant statutory and regulatory require ments. He then prepa

red a draf t license that g ener ally require d WC S t o co n s t ruct and opera te the landfill as descr ibed i n i ts final application, but which also included additional license terms to addre ss

conce rns raised during the technica l revie w and environmenta l analy sis. For example, to addre ss potential g roundwater int rusion, the draft license included a provision chang ing the boundary and raising the facility floor of one landfill to maintain an appro p ri at e buffer z one of unsaturate d soil. The draf t license also included a prohibition ag ainst rec eiving waste by rail beca use the application did not addre ss the manag ement of waste at railca r fac iliti es. As a final example of modifications,
t h e d ra ft license require d additional environmenta l monitoring and studies to confirm that sit e char acte ristics used in the models ac curately depicted a ctual conditions.
I n Aug ust 2008, the E x ecutive Direc tor published the draf t license and the draf

t environmenta l analy sis for public notice. Du ri n g the public-comment period, Sierra Club timely submitt ed written comments opposing the license, arguing that WC S’s application was incomplete and emphasizing its contention that the d ra ft environmenta l analy sis raised technica l questions

All ref ere nces to Title 30 of the Texas Administrative Code are to ru l es promulg ated 4 by TCEQ. 5conce rning the application. Sierra Club also reque sted a contested- case hear ing on the m er i t s of

WC S’s application, identify ing two of its members, Rose Gar dner and Fletc her Wil liams of Eunice,
New Mexi co, as members who had standing to reque st a hear ing in their own right beca use they lived and owned businesses, used highw ay s , and used natura l resour ces in the vicinity of the proposed fac ility

. See id. § 401.239(a) (g iving “af fec ted person” rig ht to contested- case hear ing) ; 5
30 Tex. Admin. Code § § 5 5

. 2 5 1

– . 256 (allowing “af fec ted person” to reque st hear ing and setting forth fac tors to deter

mine aff ecte d-per son status). Both TCEQ’s Ex ecutive Direc tor and WC S

rec ommended that Sierra Club’s hear in g request be denied, arguing that neither Gar dner nor Wil liams had standing to reque st a contested- case hear ing beca use neither qualified as an “af fec ted person” under rele vant statutes and TCEQ regulations. T h e Of fi ce of Public I ntere st Counsel 6

encour ag ed the commission to g rant the hear in g reque sts beca use, in its opinion, Sierra Club’s
reque st met the require ments for a ssociational standing

.

TCEQ’s commissioners evaluated Sierra Club’s hear ing reque st and WC S’s license application at a J anuar

y 2009 hear ing. After revie wing Sierra Club’s reque st, the response s to that
reque st, Sierr a Club’s reply , WC S’s sworn application, the E x ecutive Direc tor’s technica l r eview, including the environmenta l analy sis, and other informati o n b ef o re the commission, two of the three commissioners voted to deny Sierra Club’s hear ing reque st and to issue the license to WCS. 7

Gar dner and Wil liams are the same members Sierra Club relied on in connec tion with the 5 contested- case hear ing reque st at issue in Sierra Club , No. 03-11-00102- CV (af firming d en i al of hear ing r equest in by -produc t licensing matter at same disposal site). The primary duty of the Offic e of Public I ntere st Counsel is “to repr esent the public interest 6 as a pa rty to matters bef

ore the [TC EQ].” Tex. W ater Code § 5.271. At the hear ing, the third commissioner asked TCEQ’s g ener al counsel whether WC S had 7 met the Texas Radiation Control Act’s (TRCA) proper ty -ac quisiti on require ments. See Tex. Hea lth & Safety Code § 401.204. When TCEQ’s g ener al counsel responde d that WC S had not y et acquir ed 6After exhausting its administrative reme dies, Sierra Club filed the underly ing suit for judicial revie w of TCEQ’ s order in Travis County

District Court, seeking to—

• reve rse TCEQ’s decision to g rant the license and rende r a decision that TCEQ exceede d its statutory authority in considering the application befor e WC S acquire d all proper

ty interests;

• reve rse TCEQ’s decision to deny Sierra Club’s hear ing reque st a nd rema nd for rec onsideration of that decision or for an evidentiar y hear ing reg arding the hear ing r equest; or

• reve rse TCEQ’ s decision to g rant the license and rema nd for a denial of the application or for a contested- case hear ing on the merits of the application. 8

S i er ra Club argued in its petition to the district court that TCEQ err ed by considering W C S ’s application befor e WC S had acquir ed total owner ship of the mineral rig hts underly ing the disposal site and also by denying Sierra Club’s reque st for a contested- case hear ing. WC S a nd TCEQ filed pleas to the jurisdiction and specia l exceptions that wer e later denied. And in response to a motion by Sierra Club to supplement the administrative rec ord, which was denied in part and g rante d in part, the district c ourt admitted into e vidence two internal TCEQ memos related to a differ ent licensing
matter a nd an af fidavit from a

separ ate c ase. After a bench trial on the merits, the district court issued a final order “find[ing] that the TCEQ err ed in denying Sierra Club’s Hea ring Request reg arding WC S’s Application,” reve rsing

all the property , the t hird commissioner announc ed he w ould not participate i n the deliberation of WC S’s application based on his “belief that section 401.204 prec ludes” consideration of the license until all proper

ty interests are acquired. TCEQ’s o rd er g ranting the l icense was predicate d “upon a demonstration by

[W CS] that [W CS] has ac quired free and clear tit le t o and all interests i n land and buildings, inc luding the sur fac e and miner al estate s, of the propose d disposal sites.” Sierra Club filed two separ ate petitions for judicial revie w of TCEQ’s order

. These suits 8 wer e ultimately

consolidated in the unde rly ing suit. 7TCEQ’s J anuar y 20, 2009 order , and rem anding the matter to TCEQ “to allow Sierra Club to participate in a contested case hear ing.” The order denied all other reque sted relief

. I t is from this final orde r that TCEQ and WCS now appea l.

DISCUSSIO N I n two issues, TCEQ and WC S (1) defe nd the propriety of TCEQ’s decision to deny Sierra Club’s hear ing reque st and (2) challeng e the district court’s decision to a llow Sierra Club to supplement the administrative re cord.
Sierra Club’s Request for a Conteste d-Case Hear ing

I n their first issue, TCEQ an d WC S asser t that TCEQ’s denial of Sierra Club’s hear ing reque st was proper beca use the two members that Sierra Club relied on as “af fec ted persons” in support of its reque st are not aff ecte d persons under the rele vant statutes and reg ulations. See id. § 401.003(15) (def

ini n g “ a f f e c te d p e r s o n ” ) ; 30 Tex. Admin. Code § 55.256 (af fec ted-pe rson fac tors). Sierra Club, relying on our decision in City of W aco v. Texas Commission on Environmental Quality , 347 S.W .3d 366 (Tex. App.—Austin 2012), reve rsed by 413 S.W .3d 409 (Tex. 2013), maintains that TCEQ’s denial of Sierra Club’s hear ing reque s t was arbitra ry and capr icious beca

use Sierra Club alleg ed suff

icient fa cts in its request to satisfy the hea ring -re quest requir ements. 9

Sierra Club a lso a sserts on appea l that the conditional nature of TCEQ’s order —i.e., that 9 it would not be g rante d until WCS acquir ed all nec essar y title to proper

ty —supports aff

irming the district court’s order

. Although Sierra Club raised this issue at the district court, the district court’s judgme nt denied “all other relief not expressly g rante d.” Thus, resolution of this issu e i n S i erra Club’ s fa v o r would require altering the district court’s judgme nt. Howeve r, Sierra Club did not fi l e a n o tice of appea l. Acc ording ly , we lack jurisdiction to consider this issue. See Te xa s B d

. of Chiropractic Exam’rs. v. Texas Med. Ass’n , 375 S.W .3d 464, 492 (Tex. Ap p . — Au s t in 2012, pet. denied) (holding that party seekingto alter trial c ourt’s judg ment must file notice of a ppeal)

. 8Cont ested-c ase hearing requests The Texas Radiation Control Act (TRCA) g overns the developmen t , u se, storag e, proce ssing, an d d i sposal of radioa ctive materia ls in Texas, including the low-leve l radioa ctive
waste at issue in this case . See Tex. Hea lth & Safety Code §§ 401.001–.002 (TRCA ’s policy and purposes) ; s ee also id. §§ 401.2005–.251 (TRCA provisions specific to low-leve l radioa ctive waste)

. TRCA give s TCEQ the sole authority to reg ulate and lice nse the disposal of low- level ra dioactive
waste. See id

. §§ 401.201–.202. Under TRCA, TCEQ must hold a contested-ca se hearing on the merits of an application for a low-leve l radioa ctive was t e disposal license if a “per son aff ecte d”
reque sts such a hear ing. See id. § 401.239(a)

. Thus the critica l, or threshold, inquiry in contestedcase hear ing reque sts—and importantly the focus of the parties to this appea l—is whether the person reque sting the hear ing is an “af fec ted person.” See City of W aco , 413 S.W .3d at 417. That question, in turn, is principally

controlled by

the af fec ted-pe rson fa ctors cr eate d by TCEQ:
(a) For any application, an aff ecte d person is one who has a persona l justiciable interest related to a lega l rig ht, duty , privileg e, p o wer, or economic interest aff ecte d by the application. An interest common to members of the g ener al public does not qualify

as a pe rsonal justiciable intere st.

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

regulated; (4) likely impact of the regulated activity on the health, safe ty , and use of proper ty of the pe rson;

9(5) likely impact of the reg ulated activity on use of the impacted natura l resour ce by

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

30 T ex . Ad m in. Code § 55.256 (“D eter mination of Affe cted Person”) ; see Tex. Water Code § 5.115(a) (direc ting TCEQ to adopt rules specify ing fac tors that must be considere d in deter mining aff ecte d-per son status); see also City of W aco , 413 S.W .3d at 416–17, 420 (di s c u s s in g T CE Q

- c r e a te d fac tors). I f, upon considera tion of these fac t o rs at a Commi ssion meeting , the TCEQ 1 0 commissioners deter

mine that the reque stor is an aff ecte d person and otherwise meets the regulatory require ments reg arding contested- case hear ings, the commissioners must g rant the hear ing reque st and ref er the application to the State Offic e of Administrative Hea ring s for a contested- case hear ing. See 30 Tex. Admin. C ode § 55.255(a )(3) (Commissi on Action on Hea ring Request). Conver sely , if the TCEQ commissioners deter mine that the reque stor is not an aff ecte d person or that the hear ing
req u es t d o es not otherwise meet t he reg ulatory require ments, the commi ssioners m ay , as t hey did here , deny the hearing reque st and act on the permit application without a contested-ca se hearing ,

see id. § 55.255(a) (1), or instead schedule additional public hear ing s b e f o re acting on the application, see id. § 55.255(a) (2).

Stan dard of rev iew We revie w a TCEQ de termination reg arding aff ecte d-per son status for an abuse of discretion. Sierra Club v. Texas Comm’n on Envtl. Quality , No. 03-11-0010 2 -C V, slip op. at 11

Upon rec eiving a hear ing reque st, TCEQ’s executive direc tor must schedule the hear ing 1 0 reque st for consideration at a commission meeting and allow the executive direc tor, public interest counsel, and the permit applicant to file response s to the hear ing reque st and the hear ing reque stor an o p p o r tu n it y to reply

. See 30 Tex. Admin. Code § 55.254(c) (2), (e) –(f) (He aring Request Processing )

. 10(Tex. App.—Austin Dec

. 30, 2014, no pet. h.), available at http:// www.txcourts.gov//3rdc oa (citing

City of W aco , 413 S.W .3d at 411, 420, 424). An ag ency abuses its discretion in making a decision if it “(1) fails t o consider a fa ct o r t h e L eg islature directs it to consider; (2) considers an irrelevant fac tor; or (3) weig hs only rele vant fac tors that the L eg islature direc ts it to consider but still rea ches a complete ly

unrea sonable re sult.” City of El Paso v. Publi c Util

. Comm’n , 883 S.W .2d 179, 184 (Tex. 1994) (citing Gerst , 411 S.W .2d at 360 n.8); see also Downer v. Aquamarine Operators, Inc. , 701 S.W .2d 238, 241–42 (Tex. 1985) (the test for an abuse of discretion is w hether “the trial court
acte d without ref

ere nce to any g uiding rules and principles” or “whe ther the act was arbit rary

or unre asonable ”).

I n making a decision reg arding aff ecte d-per son status, TCEQ enjoy s th e discretion to weig h and resolve matters that may g o to the mer i t s o f the underly ing application, including the likely impact the regulated activity —here , underg round disposal of l ow-leve l radioa ctive waste—w ill have on the health, safe ty , and use of proper ty by the hear ing reque stor and

on the use of natura l resour ces. See Sierra Club , No. 03-11-00102- CV, slip op. at 12 (citing 30 Tex. Admin. Code § 55.256(c) ; City of W aco , 413 S.W .3d at 420 (noting overla p betwee n aff

ecte d-per son fac tors and exemption found to be dispositi ve in that case )). TCEQ’s inquiry into these and the other fac tors may include ref

ere n ce t o t he permit application, attache d expert repor ts, the analy sis and opinions of profe ssionals on its staff, and any repo rt s , o p i n i ons, and data it has befor e it. See id. (citing City of W

aco , 413 S.W .3d at 420–21 (desc ribing these evidentiar y items as rele vant to inquiry and holding that there was evidenc e in rec ord to support TCEQ’s deter mination)). And importantly , the ex istence of subs t an t i al evidenc e in the record supporting TCEQ’s decision i s a factor—of ten

a dispositi ve fac tor—in deter mining whether TCEQ abused its discre t i o n. See id. (citing City of

11W

aco , 413 S.W .3d at 424–25); see also Quixtar Inc. v. Signature Mgmt. T eam, LL C , 315 S.W .3d 28, 35 (Tex. 2010) (per curiam) (holding that trial court’s forum-non- convenie ns dismiss al “wa s not

an abuse of discretion in light of the evidenc e befor e it”); Texas Health Facilities Comm’n v. Charter Med.- Dallas, In c. , 665 S.W .2d 446, 454 (Tex. 1984) (noting that “the exis tence of substantial

ev i d ence has been equate d with fair and rea sonable conduct on the part of the ag ency ,” whi l e “ag ency decisions t h at are unsupported by substantial evidenc e have been deeme d arbitra ry and capricious”)

. This is so reg ardle ss of whethe r TCEQ held an evidentiary hear ing, as long as the hear ing reque stor was aff orded its regulatory rig hts to express his dissatisfaction with the
p ro p o s ed license and the age ncy did not ref use t o consider the evidenc e offere d in support of t hat dissatisfaction. See Sierra Club , No. 03-11-00102- CV, slip. op. at 13 (citi ng Bosque River , 413 S.W .3d at 408 (noting , in its d et ermination of whether TCEQ abused discretion in denying hear ing reque st, that there was “no indication that [TC EQ] ref used to consider any evidenc e tender ed
to substantiate the[] asser

ted defic iencies” in reque sted permit); City of W aco , 413 S.W .3d at 423–24 (re versing contra

ry holding in the underly

ing opini o n wh i l e citing with approva l Colli ns v. Texas Natural Res. Conservation Comm’n , 94 S.W .3d 876, 8 8 4

– 8 5 ( T e x. A p p . — A u stin 2002, no pet.), that
agenc y ’s denial of hear ing reque st was supported by substantial evidenc e reg ardle ss of fac t t h at evidentiar y hear ing not he ld)).
TCEQ’s evaluation of Si erra Club’s h earing request Our revie w of the rec ord indicates that TCEQ was within its discretion to deter mine that Sierra Club’s members wer e n o t af fec ted persons. The rec ord indicates that, upon rec eipt of S i er ra C lub’s hear ing reque st, the Ex ecutive Direc tor set the matter for consideration at a T C EQ m eeting , allowed responses, and allowed Si err a C lub to file a reply to those re s p o n s es . I n
12considering the reque st, TCEQ had b ef o re i t , among other items, Sierra Club’s hear ing reque st, WC S’s final application, the dra ft p er m i t , the draft environmenta l analy sis, public comments, the
Ex ecuti v e Di rector’s response s to comments and hear ing reque sts, WC S’s and OPI C’s response s
to hear ing reque sts, and Sierra Club’s reply to those response s. The following is a summary of the information containe d in these mater ials.

Sierra Club’s first purported “af fec ted person” memb e r , Ro s e G a r d n e r , o wn s p r o p e r

ty four miles we st of the proposed f acility , in Eunice, Ne w Mexico, where she grows a lfalfa and hay and raises horses, cattle, g oats, chic k ens, and a pig that fee d on the alfalfa and hay

. Sierra Club’s hear ing reque st alleg ed that Gar dner’ s health and proper ty would potentially be aff ecte d by WC S’s fac ility in the following way s:

• Neg ati v e publicity associate d with the radioa ctive disposal fac ility will cause economic damag e to her

two businesses, which r ely on trave lers fr om outside Eunice, Ne w Mexico.

• A traff

ic acc ident involving tox ic or radioa ctive materia l destined for the WC S fac ility would “have the potential to impact her livelihood and health.”

• Di s p er s al o f radioa ctive materia l from the site to the west would “have the potential to impact her

livelihood and health.”

• Groundwater contamination from the fac ility might aff ect her health and livelihood beca use the well on her proper

ty is “potentially hy drolog ically connec ted to g roundwa ter resour ces” in the vicinity

of the site.

• I f depleted uranium from the uranium enric hment plant near her home town of Euni ce , New Me x ico is disposed of at the WCS fac ility , it would be transporte d on the same r oads that Gar dner use s. 1 1

• Although railca

r transport is not allowed under the terms of the draf t license, W C S m ight later seek to rec eive waste by rail and, if it do es , an y acc idents involving transportation of

WC S emphasizes that dispo s al o f m aterials from the uranium enric hment plant near 1 1 Eunice is not authorized under the proposed lice nse.

13radioa ctive waste by rail to the WC S fac ility would aff ect Gar dner beca

use she trave ls near the ra ilroad that would be use d.

• Gar dner lives in “the same hy drolog ical basin a s the WCS site.”

• “Hig h single -direc tion winds trave ling w e s tw a r d f r o m th e s it e have the potential to materia lly harm” Gar dner’ s proper

ty , livelihood, and heal t h i f they disperse radioa ctive materia l from the site.

• “The very limit ed financ ial assura nces provided by ” WC S would aff ect her if WC S wer e to “wa lk away

without providing prope r cle an-up or closure of

the fa cility .” 1 2

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

ects to its second member repr esenta tive, Wil liams, including that she trave ls along the highw ay s that will be used to transport the radioa ctive waste, that her home is near a railroa d line that would be used to transport radioa ctive materia l if that mode of transport is ever allowed, that she uses g roundwa ter in the vicinity of the disposal site, and that she would be exposed to radiation by wester ly high w inds common in the area

. WC S’s application and the draf t permit, g ener ally stated, provide that the low-leve l radioa ctive waste desig nated for disposal at the WC S site will arr ive at the fac ility in secur e packa g es

or container s in compliance with applicable state and fede ral laws. The wa s t e disposed of in the Texas–Vermont Compact waste fac ility will be enca sed in car bon-st e el reinfor ced concr ete canister s place d i n an enginee red below-g round di sposal unit. The waste for the federa l-waste fac ility will be place d in concr ete canister s or in compac ted one-f oot lay ers of waste in eng ineer ed disposal units that are place d below g round. The liner sy ste m s u n d er n eath eac h fac ility will include reinfor ced

concr ete barr iers, draina g e sy stems, and a compac ted clay liner, with sensors place d under the liners
to verify that they are working

. The liner for the fede ral-w aste fac ility will also have a double-lay er

Most of these alleg ed adver se aff ects wer e also offe red (and addre s s ed ) in the case 1 2 discussed supra note 5. 14flexibl e membrane liner w ith leak- detec tion monitoring and leac hate- collection sy stems. The top

of all waste at both f

acilities will be at least five meters be low the surfa ce. T he top cove r for both fac iliti es wil l consist of a multil ay er design of between 2 5 and 40 fee t of composit e-c over sy stem with a reinfor ced concr ete barr ier, compac ted red- bed clay , sy nthetic memb r a

n e s , a n d w a ter draina g e and leak detec tion sy stems to preve nt horizontal or vertica l migr ation of moisture from the fac iliti es.

Reg arding surfa ce and g roundwater in the vicinity of the proposed fac iliti es, WC S’s application s h ows that the surfa ce water flows not west toward wher e Gar dner and Wil liams

are located, but rathe r awa y from them toward the southwest, an d t h at the g roundwater in the

are a li kewise f

lows south/sout hwest or downgr adient of Gar dner and Wil liams. WC S’s plan also includes installation of a berm on the uphill side of the landfill and a channe l to divert rainwater runoff around the three landfills. A ccor ding to the a pplication, rain falling within the landfill are a will be collecte d in a berme d are a larg e enoug h to reta in the rainfa ll from a 100-y ear , 24-hour storm
event. Rain falling in an active cell of the landfill will be captur ed and re m o v ed b y t he leac hatecollection sy stem. WC S’s plans also require monito ri n g o f ar ea surfa ce water and installation of
g roundwater-monitoring wells around the site at d i ffe ring elevations to provide early detec tion of
any subsurfac e re lease of contaminants.

Reg ardin g cl i mate and meteorolog y , the data in WC S’s application indicates that the preva iling winds at the site come from a s o u t h er l y d irec tion, while winds blow from east to west—i.e., toward Gar dner and Wil liams—only about six perc ent of the time. Fur th er, neither fac ility will be allowed to conduct waste operations during windy conditions, and WC S will monitor air pa rticulates.

15W C S’s application also included a perf ormanc e assessment it had conducte d to analy ze the potential radiation exposure to worke rs and the g ener al public during operations and for a thous and y ear s afte r t he facility cl o s es . Fo r the operational period, the perf ormanc e assessment models the radiolog ical eff ects of both normal operations and unexpected failure s of protec tive
aspec ts of the desig n, such as a brea ch of the liner sy stem or an explos ion of a waste conta iner. I t examined various pathway s for potential rele ases, including g roundwater and dispersal by high winds. Acc ording to WC S’s assessment, the radiolog ical impact of normal operations on the hy pothetical “near resident” was predicted to be less than .0004 perc ent of the allowable standard of 25 milli rems per y ear , and the impact from worst-c ase scena rios—i.e., sever e winds and tornadic conditions—was less than .002 perc ent of t h e allowable standard. For the post-closure period, 1 3
WC S modeled the impact on a h y p othetical resident living adjac ent to the landfill who uses g roundwater for drinking and livestock water ing, and also the impact on an hy pothetical “intruder

resident” —i.e., trespasse r—living direc tly above t h e d i s posal unit and using water from a well d ri l l ed d i rec tly throug h the waste for drinking and livestock water ing. The long- term estimates assumed that all eng ineer ed sy stems, such as the liner sy stem, would fa i l

. W C S ’s modeling predic ted an exposure of 3.4 milli rems p er y ear for the hy pothetical post-closure resident living

See, e.g. , 10 C.F.R. § 61.41 (Nuc lear Reg ulatory Comm’n, Protection of the gener al 1 3 population from rele ases of radioa ctivity) (“Conce ntrations of radioa ctive materia l whi ch m ay be rele ased t o t h e g ener al environment

. . . shall not result in an annual dose above backg round exceeding an equivalent of 25 milli rems to the whole body , 75 milli rems to the thy roid, or 25 milli rems to any other org an of any member of the publ ic.”) ; 30 Tex. Admin. Code § 336.724 (Protection of th e Ge n er al P opulation from Release s of Radioactivity) (same)

. Acc ording to at least one study , the aver ag e Americ an abs o rb s ap p rox imately 300 milli rems per y ear of natura l backg round radiation—i.e., radia tion from nature

. Hea lth Phy sics Soc’y , Radiation Risk in P er s p ec t i ve , Position Statement of the Health Physics Soc’y (Aug

. 2004) at 1 (ava ilable at http:// hps.org /documents/radiationrisk.pdf)

. 16adjac ent to the fac ility and 4.6 milli rems per y ear for the intruder resident—both signific antly lower

than the allowa

ble 25 millirems per y ear . TCEQ’s environmenta l analy sis of WC S’s propose d fa cility , which ag ain is require d by statute, consists of a “wr itten analy sis of the eff ect on the en v i ro n m en t of a proposed licensed activity that the commission deter mines has a signific ant eff ect on the human en

v ir o nment.” Tex. Hea lth & Safety Code § 401.113(a)

. I t is org anized by s ubject are a, analy zing the license application materia ls WC S submitt ed and t h e re l at ed technica l analy sis of those materia ls. I t discusses the re view and a naly sis of technica l issues in severa l critical a rea s and includes:
(1) an assessment of radiologica l an d n o nradiolog ical effec ts of t he activity on the public hea lth; (2) an assessment of any eff ect on a water

way or g roundwater resulting from the activity ; (3) consideration of alternatives to the activities to be co n d u cted under the license; a nd (4) consideration of the long- term eff ects associate d with activities, including decommissioning, deconta mination, and rec lamation impacts, including the manag ement of low-leve l radioa ctive waste, to be conducte d under the license.

Id. § 401.113(c)

. Stated very gen era lly , the near ly 400-pag e environmenta l analy sis of WC S’s license operati o n offe rs detailed analy sis of the application, conclusions reg arding whether the
propo s ed fac ility meets st atutory and reg ulatory require ments, and sugg ested modi fications to the license to a chieve compliance with cer tain reg ulations. The Ex ecutive Direc tor’s response s to co m ments and hear ing reque sts, which relied on information from the environmenta l analy sis, the draf t p ermit, and WC S’s application,

rec ommended that Sierra Club’s hear ing reque st be de n i ed because neither Gardne r nor Wil liams is a “person affec ted ” o r “a ffe cted person” under t he TCEQ rules for evaluating hearing reque sts.
17The E x ec utive Direc tor’s response instead conclude s that Gar dner’ s and Wil liams’s conce rns

are common to the gene ral publi c and that Sierra C l u b fa i l ed to show there was “even a plausible risk [Gardner or Wil liams] would be ad v er s ely aff ecte d by the reg

ulated activity ” beca

use they

are “upstrea

m, upg ra d i en t , and upwind” from the fac ility

. Reg arding the s pecif ic affec ted-pe rson fac tors that TCEQ must consider in evaluating hear ing reque sts, the Ex ecutive Direc tor’s response conclude d that most weig hed ag ainst finding that either Gar dner or Wil liams was an aff ecte d person. The Executive Dire ctor’s c onclusions can be summarized ge nera lly as follows:

• Section 55.256(c) (1)—Ga rdner ’s and Wil liams’s “conc erns about g roundwater and airborne contamination and financ ial assura nce a re a ddresse d by

the l aws under which the application will be considere d. ” “ A lt h o u g h c oncer

ns about neg ative publicity , transportation require ments, and the licensing of a nuclea r power plant are not addre ssed by the laws under which the WC S application is revie wed,” T C E Q d o es not regulate the transportation of radioa ctive mater i al s o r the use of roadw ay s in Texas or New Mexi co. Transpor tation of radioa ctive materia ls must comply with all applicable state and fede ral laws and regulations. Fur ther, the dr aft lice nse prohibits rec eipt of ra dioactive mate rial by rail.

• Section 55.256(c) (2)—“ [T] here are no established distance restric tions or other limit ations imposed by law on an aff ecte d interest.” Fur

ther, Gar dner and Wil liams liv e and own proper ty more than thre e miles from the pr oposed fa cility

.

• Section 55.256(c) (3)—“ There is a rea sonable relatio n s h i p betwee n the conce rn about g roundwater an d airborne contamination as well as the amount of require d financ ial assura

nce and the regulat ion of low-leve l radioa ctive waste disposal. Howeve r, these conce rns are common to all and wer e addre ssed in the revie w of the application and are ref lected in the various conditions of the draf t license.” The draf

t license require s financ ial assura nce in amounts approve d b y the Ex ecutive Direc tor based on TCEQ rules. Neither Ga rd ner nor Wil liams is party to any financ ial assura nce require ments and would n o t b e liable for a

ny shortfall.

• Section 55.256(c) (4)—“ There is no likely impact of the regulated activity on [Gardner ’s or Wil liams’s] health, safe ty and use of proper ty .” There is no likely impact from g roundwater c o n ta mi n ation beca

use the application provided adequate information o n th e c h a r a c te r iz a ti o n of the g eolog y and hy drolog y of the proposed site and desig n. The proposed desig n calls for excavation below cer

tain rele vant formations, and other rele vant formations “ar e not likely conduits of potential contamination from the proposed disposal fac iliti es to g roundwater in Eunice” beca

use of separ ation and direc tion of g roundwater flow. Recommende d revisions
18to dr aft license reg arding buffe r zones provided “additional protec tion of public health and

safe ty and the e nvironment.”

• Reg arding windborne migr ation and conta m i nation conce rns, the application shows preva iling winds primarily from the south, wher eas Gar dner and Wil liams are both due west of the proposed fac ility

. Fur ther, the application’s modeling shows that exposure wi l l be well below require d limit s. Finally , the Ex ecutive Direc tor rec ommended revisions to the draf t license to requi re a particulate emission study to addre ss high- wind events and additional analy sis of emissions controls during a vera g e and hig h-wind eve nts.

• Section 55.256 (c) (5)—“ [T] here is no likely impact of the reg ulated activity on [Gardner ’s or Wil liams’s] use of g roundwa ter resour ces.” The likelihood of g roundwa te r c ontamination and migr ation of contaminates into a well used by Gar dner or Wil liams is remote g iven the location of the reg ional aquife rs, g roundwater flow and g radie nts withi n t h e regiona l aquife rs, and the de sign of the fa cility

as re quired by

the dra ft permit.

T h e a b o v e-de scribed information contained in the adminis tr a ti v e r e c o r d a

n d a v a il a b le
to the commissioners—i.e., the Ex ecutiv e D ir e ctor’s response and rec ommendation, the information contained in its response , t h e environmenta l analy sis, the draf t permit, and WC S’s application,
among others—supports a conclusion that WC S’s application for a l o w-level radioa ctive waste disposal license met the statutory require ments for such a

fac ility and that oper ation of the facility

as licensed is not likely to adver sely aff ect the environment in amounts that are prohibited under the law. For that rea son, it would have been rea sonable, and thus within TCEQ’s discretion, to conclude that Gar dner and Wil liams are not aff ecte d persons beca

use the licensed activity will have minimal eff ect on their health, safe ty , use of proper ty , and use of natura l resour ces. See 30 Tex. Admin. Code § 55.256(c) (4)–( 5). L ikewise, it would have been rea sonable for TCEQ to deter mine that Gar dner’ s and Wil liams’s stated conce rns over possible traff ic and railwa

y acc idents in v o lving low-leve l radioa ctive materia ls wer e not rea sonably related to the disposal of those materia ls at the WC S site beca use TCEQ has no jurisdiction over the transportation of radioa ctive materia ls a nd beca use the permit does not allow WC S to rec eive radioa ctive materia l by rail. See id. § 55.256(c) (1),( 3).
19Relatedly , it would have been rea so n ab l e fo r T C EQ to deter mine that Gar dner is not an aff ecte d
person g iven that her conce rn reg arding the eff ects of possible neg ative publicity on her business is
not rea sonably related to the WC S fac ility beca use the re levant regulations involve public health, safe ty , and the environment—not publicity

. S ee i d

. Finally we would note, as did the Ex ecutive Direc tor, that Gar dner’ s and Wil liams’s co n ce rns about the licensed activity are share d by the
g ener al public. See id. I n sum, we cannot say that TCEQ err ed in deciding that neither Gar dner nor Wil liams is a person who would be aff ecte d by the proposed permit under t h e re l ev ant fac tors. Acc ording ly , it was within TCEQ’s discretion to deny the h ear ing reque st, and in fac t, it would have been an abuse of TCEQ’s di scre tion to g rant the hear ing reque st upon such a deter mination. See Tex. Hea lth & Safety Code § 401.239 (re quiring TCEQ to hold contested- case hear ing reg arding low-leve l radioa ctive waste license if reque sted by person aff ecte d). We sustain T CEQ’s and WC S’s first issue.
Sup plem ental Evidence

Having sust ai n ed ap pellants’ first issue on appea l, we need not addre ss their second issue challeng ing the district c ourt’s decision to supplement the administrative rec ord with internal TCEQ memos reg arding another ty pe of disposal license and wi t h a third-par ty aff idavit from another case. See Tex. R. App. P

. 47.1 (re quiring opinion be “as br ief a s prac ticable but . .

. addre ss[ ing] eve ry

issue raised a

nd nece ssary

to final dispositi on”).

CONCLUSION Having deter

mined that T C EQ’s decision to deny Sierra Club’s reque st for a contested-case hear ing is supported by the administrative rec ord, we reve rse the district court’s

20judgme nt and rende r judgme nt aff irmin g T C E Q’s decision to deny the hear ing reque st. See Tex. Health & Safety

Code § 401.240(b).

_

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J eff Rose, J ustice
Be fore J ustices Pury ear , Pemberton, and Rose
Reverse d and Rende red on Motion for Re hear ing Filed: De cembe r 30, 2014

21