### 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. 03-11-00129- CV

Heritage on the San Gabrie l Hom eowners Association; Hutto Citize ns Group; Mount Hutto Aware Citize ns; Mahlon Arnett; R obbi Arnet t; TJF A, L.P .; and

Jonah Water S.U.D., Appellants

v. Texas Com m ission on En vironm ental Quali ty and Wil liam son Coun ty, Texas, Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 261 ST JUDICI AL DISTRICT NO. D-1 -GN-0 9-0 0176 6, H ONO RAB LE JO HN K. DIETZ, JUDGE PRESI DING

O P I N I O N Appellants, Her itag e on the San Gabr iel Homeowne rs Association, Hutto Citi zens Group, Mount Hutto Awar e Citiz ens, Mahlon Ar nett, Robbi Arnett, TJ FA, L .P., and J onah Water
S.U.D. (collec tively , the “Hutto landowner s”), challeng e the district court’s judgme nt aff irming the
Texas Commi ssion on Environmental Quality ’s (“TCEQ” ) decision to g rant a permit to Wil liamson County to expand its landfill, which is located near Hutto, Texas. I n their first four issues on appea l, the Hutto landowner s raise issues of both statutory interpre tation and substantial evidenc e. I n their fifth issue, they challeng e the TCEQ’s decision to overturn the administrative-law judge s’ (“A L J s”)

r e c o mm e n d a

ti o n a b o u t th e e xp a

n d e d la n d f il l’ s o p e r a ti n g h o u r s . T h e s ixt

h is s u e c o n c e r

n s th e T CE Q ’ s

rea llocation of the repor

ting and transcr iption costs among the parties, but it has been mooted by the County ’s decision to bear the costs as the AL J s rec ommended. Wit h reg ard to the first four issues,

we find that the TCEQ rea sonably interpre ted the g overning statutes and rules and that its order wassupported by substantial evidenc e. But beca use we find that the TCEQ did not provide the require d explanation for overturning the AL J s’ rec ommendation about the landfill’s opera ting hours, we will aff irm in part the district court’s judgme nt aff irming the TCEQ order and reve rse and rema nd in part.

BACK GR OUND Wil liamson County applied to the TCEQ for a permit to expand its exis ting landfill, which has an estimated life of 25 to 50 y ear s without the expansion. The County is the sole owner 1
of the landf

ill, which se rves the County and surrounding are as. The landfill is a Ty pe 1 municipal solid-waste landfill and has been in opera tion since 1983. Since 1987, Waste Manag ement of Texas,
I nc. (“ Waste Manag ement”) has oper ated the la ndfill under a c ontrac t with the County

. The County

proposed to chang e the proper ty are a fr om approxim ately 202 acr es to 575 acr es, to incre ase the waste- disposal f ootprint f rom approximately 160 acr es to 500 acr es, and
to ve rtically expand the exis ting landfill from 766 fee t a bove mean sea level to a

pproxi mately 840 fee t above mean sea level. The landfill is located in the centr al part of Wil liamson County , 1.6 miles north of the municipal li mits of Hutto, the near est community , and betwee n seven and ten miles from Ge org etown, Round Rock, Tay lor, and Gr ang er. The TCEQ executive direc tor deter mined that the County ’s permit amendment application was administratively complete in May 2005. The TCEQ revie wed the application and 2

T h e f a c ts r e c it e d h e r e in a

r e ta k e n f r o m th e te s ti mo n

y a n d e xh ib it s a d

mi tt e d a t th e c o n te s te d

1 case hear ing. As a result, the TCEQ’s rules in eff ect on Dec ember 31, 2005 (bef ore the 2006 revisions), 2 apply to the application. Citations to the Texas Administrative Code are to the version of the code with the eff

ective date of Dec ember 2, 2004. We cite to the curr ent version of the g overnme nt code 2decla

red it technica lly complete in Marc h 2006. Public notice was g iven and three public meeting s about the application wer e held in Hutto. I n Aug ust 2006, the Coun t y re q u es t ed that the TCEQ direc tly ref

er th e ap plication to the State Offic e of Administrative Hea ring s for a contested- case hear ing on whether the application complied with all ap p l i cable require ments. Two AL J s held a hear ing on the merits in Aug ust 2007. The County , the executive direc tor of the TCEQ, the Offic e of Public I ntere st Counsel, and the Hutto landowner s were parties to the c ontested-c ase he aring

.

After the hear ing, in Fe bruar y 20 0 8 , the AL J s issued a proposal for decision concluding that the County had met its burden of demonstrating the application’s compliance with all applicable statutory and reg ulatory require ments and recommending t h at t he ex pansion permit be g rante d. Although the application had proposed that the l andfill opera te 24 hours a day , seven day s a wee k, the AL J s rec ommended authorizing the County to opera te the landfill from 5:00 a.m. until 8:00 p.m. Monday throug h Fr iday and from 6:00 a.m. until 4:00 p.m. on Saturday

. The TCEQ issued an order g ranting the per mit amendment on Fe bruar y 17, 2009. I n its final order, it re vised the landfill’s opera ting hours, adding 29 opera ting hours per we ek d u ring which the County may

o p e r a te h e a v y e q u ip me n t a n d tr a n s p o r t ma te r ia ls to a n d f r o m th e la n d f il l. Wh il e th e w a s te

- a c c e p ta n c e hours rema ined the same as those rec ommended by the AL J s, the TCEQ authorized hours for heavy

equipment opera tion and materia ls transporta tion from 3:00 a.m. until 10:00 p.m. Monday throug h Saturday

. After motions for rehe aring wer e filed and overr uled by opera tion of law, the TCEQ issued the permit on May 6, 2009. The Hutto landowner s appea led the TCEQ’s order to the Travis

and the health and sa fety

code f or conve nience , howeve r, bec ause the re ha ve bee n no intervening amendments that a

re ma terial to our disposition of this appeal. 3C o u n t y District Court. After oral arg ument, the district court aff irmed the TCEQ’s order

. Thi s
appea l followed.

DISCUSSIO N

T h e s u b s ta n ti a l- e v id e n c e s ta

n d a r d o f t h e T e x a s A d

m i n i s tr a ti v e Pr o c e d

u r e A c t ( “ A PA ” )
g overns our revie w of the TCEQ’s final order

. See Tex. Gov’t Code Ann. § 2001.174 (West 2008). The APA authorizes reve rsal or rema nd of an ag ency ’s decision that prejudice s the appellant’ s

s u bstantial rig hts beca

use the administrative finding s, infere nces, conclusions, or decisions (1) vio l ate a constitutional or statutory provision, (2) exceed the ag ency ’s statutory authority , (3) wer e made throug h unlawful proce dure, (4) are aff ecte d by other err or of law, or (5) are arbitra ry

or capr icious or char acte rized by abuse of discretion or clea rly unwar rante d exercise of discretion. Id. § 2001.174(2)( A)-( D), (F ). Otherw ise, we may aff irm the admi nistrative decision if we are

s a ti s f ie d th a t “ s u b s ta n ti a l e v id e n c e ” e xis ts to s u p p o r t it

. T e x. G o v ’ t Co d e A nn . § 2 0 0 1

. 1 7 4 ( 1 ) , ( 2 ) ( E )

. I nstance s may a

r is e , h o w e v e r , in w h ic h the ag ency ’s action is supported by substantial

e v id e n c e , b u t is n o n e th e le s s a r b it r a r y a n d c a p r ic io u s . S

e e Te x a s H e a lt h F a c il it ie s Co m m ’n v
. Ch a r te r Med.- Dallas, Inc. , 665 S.W .2 d 4 4 6 , 4 5 4 (T ex. 1984). An ag ency acts arbitra rily if it makes a d ec i sion without reg ard for the fac ts, if it relies on fac t finding s that are not supported by any evidenc e, or if there does not appea r to be a rational connec tion betwee n the fac ts and the decision.
See City of W

aco v. Texas Comm’n on Envtl. Quality , 346 S.W .3d 781, 819-20 (Tex. App.—Austin 2011, pet. denied)

. I n other words, we must rema nd for arbitra

riness if we conclude that the ag ency

4has not “‘g enuinely eng ag ed in rea soned decision-making .’” Id. (quoting Starr Cnty. v. Starr Indus.

Servs., I nc. , 584 S.W .2d 352, 356 (Tex. Civ. App.—Austin 1979, writ ref’d n.r .e.))

. We revie w t he age ncy ’s l eg al conclusions for error s of l aw and its fa ctual finding s for support by substantial ev i d en ce . Heat Energy Advanc ed Tech., Inc. v. W est Dallas Coal. for
E n v tl

. J u s ti c e , 962 S.W .2d 288, 294-95 (Tex. App.—Austin 1998, pet. denied)

. Substantial evidenc e “does not mean a larg e or considera ble amount of evidenc e, but rathe r such rele vant evidenc e as

a rea sonab l e m i n d m i gh t acc ept as adequate to support a conclusion of fac t.” Lauderdale v. Texas Dep’ t of

Agric. , 923 S.W .2d 834, 836 (Tex. App.—Austin 1996, no writ) (quoting Pierce v. Underwood , 487 U.S. 552, 564-65 (1988)) (interna l quotation marks omitted). We co n s i der the reliable and probative evidenc e in the rec ord as a whole when testing an ag ency ’s fi n d ings, i n fe rences, conclusions, and decisions to deter mine whether they are rea sonably supported by substantial evidenc e. Graff Chevrolet Co. v. T exas Motor Vehicle Bd. , 60 S.W .3d 154, 159 (Tex. App.—Austin 2001, pet. denied); see Tex. Gov’t C ode Ann. § 2 0 0 1 .174(2)( E). We presume that the TCEQ’s orde r is supported by substantial evidence , and the Hutto la ndowner s bear

the burde n of proving otherwise. See Charter Med. , 665 S.W .2d at 453. The burde n is a hea vy one—eve n a showing that the evidenc e preponde rate s aga i n s t the ag ency ’s decision will not be enoug h to

overc ome i t, if there is some rea sonable ba sis in the recor d for the a ction taken by the ag ency . Id.

at 452. Ou r u l t i m ate conce rn is the rea sonablene ss of the ag ency ’s order , not its corr ectne ss. Firemen’ s & Policeme n’s Civil Serv. Comm’n v . Brinkmey er , 662 S.W .2d 953, 956 (Tex. 1984). Whether the ag ency ’s order satisfies the substantial-evidenc e standard is a question of l aw. Id. Thus, the d i s t ri ct court’s judgme nt that there was subst antial evidence supporting the

5TCEQ’s final order is not entitled to defe renc e on appea l. See Texas Dep’ t of Pub. Safety v. Alford , 209 S.W .3d 101, 103 (Tex. 2006) (per curia m). On appe al from the district court’s judgment, the focus of the appel l at e court’s revie w, as in the district court, is on the ag ency ’s decision. See Montgomery Indep. Sch. Dist. v. Davis , 34 S.W .3d 559, 562 (Tex. 2 0 0 0); Tave v. Alanis , 109 S.W .3d 890, 893 (Tex. App.—Dallas 2003, no pe t.).

The L eg islature has char ged the TCEQ with reg ulating the manag ement of solid-waste disposal and has g iven it broad discretion to adopt rules for issuing permits for municipal

s o l i d -waste disposal fac iliti es. See Tex. Hea lth & Safety Code Ann. §§ 361.002 (establis h i n g
purpose of Solid Waste Disposal Act is to safe g uard people’ s health, welfa re, and phy sical proper

ty and to protec t environment by controlling manag ement of solid waste) , .011 (West 2010) (g ranting
power s and duties nece ssary or convenie nt to car ry ing out responsibilities for manag ing municipal solid waste)

. When there is vag ueness, ambig uity , or room for policy deter minations in a statute or
reg ulation, we g en er al l y defe r to the ag ency ’s interpre tation unless it is “plainly err oneous or inconsistent with the lang uag e of the statute, reg ulation, or rule.” TGS-NOPEC Geophy sical Co. v. Combs , 340 S.W .3d 432, 438 (Tex. 2011). But this de fer ence to the ag ency ’s interpre tation is not conclusive or unlimit ed—we defe r only to the extent that the ag ency ’s interpre tation is rea sonable.
See id. We construe administrative rules in the same manner as statutes, using traditional principles of statutory

construction. Id. When we construe administrative rules and statutes, our primary objective is to g ive eff ect to t h e i n t en t of the issuing ag ency and leg islature, “which, when possible, we discern from the plain meanin g of the words chosen.” State v. Shumake , 199 S.W .3d 279, 284 (Tex. 2006)

6(addr essing statutory construction); see Rodriguez v. Servic e Lloyds Ins. Co. , 997 S.W .2d 248, 254

(Tex. 1999) (addressing rule construction). We consider statutes and rules as a whole rather than their isolated provision s . T GS -N OP E C , 340 S.W .3d at 438-39. We presume that the leg islature chooses a statute’s lang uag e with car e, purposef ully ch o o s i n g eac h word it includes, while purposef ully omitti ng words not chosen. Id. The meaning of a statute’s lang uag e may be informed by fac tors that include the law’s objective. Tex. Gov’t C ode Ann. § 311.023(1) (West 2005); s ee also Shumake , 199 S.W .3d at 284.

Land fi ll perm it

The health and safe ty code require s a permit issued under the Solid Waste Disposal Act to include “the name and address of eac h person who owns the l and on which the solid waste fac ility is located and the person who is or will be the operator or person in charge of the facility .”
Tex. Hea lth & Safety Code Ann. § 361.087(1) (West 2010) (empha sis added)

. The landfill permit issued by the TCEQ identifies the County as the “per mittee” (i.e., permit holder), “owne r,” and “site
opera tor,” and it identifies Waste Manag ement as the “oper ator.” I n its order g ranting the permit, the TCEQ found that the County was the “a

pplicant” a

nd conclude d that “[t] he Applica nt has met the requirements of 30 Te x . Admin. Code § 305.43(b) in that [ Waste Manag ement] submitt ed the Application to the Commiss ion on behalf of Wil liamson County .”
I n their first issue, the Hutto landowner s chal leng e the TCEQ’s conclusions that: (1) Waste Manag ement is the “oper ator” of the landfill, and (2) Waste Manag ement properly submitt ed the application on behalf of the County

. I n other words, the landowner s asser t that only

7the County should appea r on the permit beca

use they contend that the County is both the owner and
opera tor of the landfill under health and safe ty code section 361.087(1). Simi larly , they arg ue that
Waste Manag ement should not have applied for the permit on the County ’s behalf beca use it is not the “oper ator” of the landfill as define d in c hapter 305 of title 30 of the administrative code. They
arg ue that these err ors require us to r ever se the order authorizing the County to e x pand the landfill and rema nd the case to the TCEQ. The TCEQ and the County respond that the TCEQ’s challeng ed conclusions are reason ab l e u nder its interpre tation of t he relevant statute and rules. We will look first to the plain lang uag e of the rele vant statute and rules to deter mine whether they are ambig uous; if they are not, we will apply their words a ccor ding to their common meaning

. Railroad Comm’n

v. Texas Citi

zens for a Safe Future & Clean W ater , 336 S.W .3d 619, 628 (Tex. 2011). To the extent that t h ey are ambig uous, we will defe r to the ag ency ’s interpre tation if it is rea sonable unless it is “plainl y er ro n eo u s or inconsistent with the lang uag e of the statute, reg ulation, or rule.”
TGS-NOPEC , 340 S.W .3d at 438.

Proper identification of an “operator” u nder TCEQ ru les
T h e T C E Q made finding s of fac t that the County was the sole applicant for t h e permit, the owner of the landfill, and the sole permittee under t h e ex i s t i ng landfill permit. The
T C E Q al s o found t hat W aste Manag ement operates the landfill under a contra ct wit h the C ounty

. I n its conclusions of law, the TCEQ de termined that:

• the provisions of 30 Texas Administrative Code chapte r 330 “apply specific ally to ‘all aspec ts of muni ci p al solid waste

8manag ement,’ and are based primarily on the stated purpose” of cha pter 361 of the health and sa fety code;

• the County is the “owne r” of t h e l an d fill as define d in rule 330.2(94) of

the administrative code ;

• the County is th e “site opera tor” of the landfill under rule 330.2(132);

• Waste Manag ement is the “oper ator” of the landfill under rule 330.2(91);

• the health and safe t y code require s a permit issued under section 361.087(1) to include the owner’s na me and a ddress and “the person who is or will be the ‘oper ator’ of the fac ility as def ined in 30 Tex. Admin. C ode § 330.2”; a nd

• the draf

t permit number MSW -1 4 0 5 B w il l id e n tify the County as the “owne r” and “site opera tor” and Waste Manag ement as the “ope rator” of the landf ill.

The plain lang uag e of chapte r 330 of title 30 of the administrative code states exactly what the TCEQ conc l u d ed : “T he reg ulations promulg ated in this chapte r cover all aspec ts of municipal solid waste manag ement

. . . and are based primarily on the stated purpose of Texas Civil Statutes, He al th and S afe ty Code, Chapter 361

. . . .” 30 Tex. Admin. Code § 330.1 (2004) (Tex.
Comm’n on Envtl. Quality , Dec lara tion and I ntent). T h e d efinit ions of “owne r,” “site opera tor,” “oper ator,” and “oper ate” relied on b y t he TCEQ in its order are found in chapte r 330, which specific ally

g overns “ Municipal Solid W aste” :

• “owne r” is “the person who owns a fac ility or p ar t o f a fac ility ”;

9• “ s it e o p e r a to r ” is “ [t ]h e h o ld e r o f

, o r th e a p p li c a n t f o r , a p e r mi t (or lice nse) f

or a municipa l solid waste site”;

• “oper ator” is “[t] he person(s) responsible for opera ting the fac ility or par t of a fa cility ”; and

• “ o p e r a

te ” me a n s “ [t ]o c o n d

u c t, w o r k , r u n , m a n a g e , o r c o n tr o l. ”

3 0 T ex . Admin. Code § 330.2(88) (“ope rate ”), (91) (“ope rator” ), (94) (“ow ner” ), (132) (“site
opera tor”) ( 2004) (Te x . Comm’n on Envtl. Quality , Def initions ) (e mphasis added)

. The Hutto landowner s arg ue th at the County —not Waste Manag ement—should have been identified as t he “opera tor” on the permit. They acknow ledg e that W aste Manag ement “provide s day -to-day landfill manag ement service s under a contra ct with the County ”—i.e., Waste Manag ement operates the landfill under the chapte r 330 definition. They contend, howeve r, that the TCEQ’s incorpora

tion of its chapte r 330 definition of “oper ator” into health and safe ty code section 361.087(1) incorre ctly interpre ts the statute beca use it conflicts with the st at ute’s plain lang uag e. Specifica lly , the landowner s arg ue that the term “oper ator” in section 361.087(1) is unambig uously
sy nony mous with “person in char g e of the fac ility ” and tha t “per son in charg e” doe s not mean the entity responsible for day -to-day opera tion of the fac ility

. I nstead, they asser t that the term “per son in char g e,” and consequently , the t erm “opera tor” mean the entit y wi t h u ltimate responsibility for

t h e fa ci l ity , which they define as the permit holder, if differ ent from the owner . I n essenc e, t h e 3

Simi larly , they arg

ue that the chapte r 330 definition of “site opera tor,” (i.e., permit holder) 3 is more consistent with their asser ted interpre tation of “per son in char g e of the fac ility .” We addre ss the landowner s’ contention that “oper ator or person in char g e of the fac ility ” means “per mit holder, if diffe rent fr om the owner ” whe n analy zing the statute’s a

mbiguity below. 10landowner s arg ue that an entity responsible for day -to-day manag ement of opera tions but who does
not own the land or hold the permit is not “in char g e” of t h e fa ci l i t y beca use it is not ultimately responsible for the landfill’s opera tion. There fore , under the landowner s’ interpre tation of section 361.087(1), beca

use the County as owner and permit holder has ultimate resp o n sibili ty for the landfill, it is “the person in cha rg e” a nd thus the “oper ator” of the landf ill.
We must beg in by examining the plain lang uag e of the statute to deter mine whether it is ambig uous beca

use we will only defe r to the TCEQ’s interpre tation of the term “oper ator” if the
statute is ambig uous. See Texas Citi zens , 336 S.W .3d at 628. The landowner s contend that the term “oper ator” is unambig uously s y n o n y mo u s with “per son in char g e of the fac ility ,” and thus “oper ator”

means the person or entity with ultimate responsibility for the proper ty

. First, we do not ag ree that the terms “oper ator” and “per son in char g e of the fac ility ” are unambig uously sy nony mous. I nterpre ting the two te rms to me an the same thing, a s the landowne rs urg e, re nders e ither the ter m “oper ator” or the term “per son in charg e” supe rfluous, and it is an ele mentary rule of c onstruction that we g ive eff

ect to ever

y word of a statute so that no part is rende red superf luous. See City of San
Antonio v. City of

Boerne , 111 S.W .3d 22, 29 (Tex. 2003). Moreove r, the term “or” is a disjunctive conjunction, which signifie s a separ ation betwee n two distinct ideas. Spradlin v. Jim W alter Homes,
Inc. , 34 S.W .3d 578, 581 (Tex. 2000). I n this statute, as we further explain below, “per son in char g e of the fac ility ” is a clar ify ing phrase that explains who shoul d b e l i s t ed o n the permit if there are multipl e oper ators.

Second, we dis a g r e e th a

t th e te r m “ o p e r a to r ” u n a mb ig u o usly means the permit holder, if the owner is not the permit holder. There is no indication t h at t h e legislature intended the term

11“oper ator” to be define d in this way . The Solid Waste Disposal Act leave s the term undefine d. See

Tex. Hea lth & Safety Code Ann. § 361.003 (West 2010) (establishing applicable definitions). I f the leg islature had intended a permit to include “the name and addre ss of eac h person who owns the land

on which the solid waste fac ility is located and the person who is or will be” the permit holder, if the

o wn e r is n o t th e p e r

m it h o ld e r , it w o u ld h a

v e s o s ta te d

. T e x. H e a lt

h & Sa f e ty Co d e A

nn . § 3 6 1

. 0 8 7 ( 1 ) ;

see also Cameron v. T

er r el l & Gar rett, Inc. , 618 S.W .2d 535, 540 (Tex. 1981). “[E] very word excluded from a statute must also be p re s u m ed t o h ave been excluded for a purpose.” Cameron , 618 S.W .2d at 540. We will not presume that the leg islature intended the term “oper ator” to mean the permit holder, if the owner is not the permit holder, when there is nothing in the lang uag e of the statute to indicate that intent.

F in a ll y , w e e x amine the plain meaning of the term “oper ator.” A dictionary defin it io n of “oper ator” is “a person that actively opera tes a business,” and “oper ate” means “to cause to function usu[ally ] by direc t persona l eff ort.” Webster’s Third New I n t ’l Di ct ionary 1581 (2002). Although this could be rea d to mean that the “oper ator” is th e en t i t y that phy sically cause s the landfill to function, i.e., Waste Manag ement, when the statute is re ad as a whole, the use of “oper ator” as an alterna tive to the “per son in char g e” of the fac ility cre ates ambig uity

. “I n char g e”

means “having the control or custody of something.” Webster’s Third New I nt’l Dictionary 377 (2002). I n this case , for example, Waste Manag ement cause s the landfill to function, and it also has immediate control and custody of the landf

ill. The County , on the other hand, does not phy sically

run the landfill, but it has ultimate c ontrol of the proper ty

. Thus, the statute is a

mbiguous beca

use

12we c annot re adily deter mine based on the plain lang uag e “who is or will be the oper ator or pe rson in char g e of the fac ility .” Te x . Hea lth & Safe ty Code Ann. § 361.087(1)

. Having deter

mined that section 361.087(1) is ambig uous, we will consider whether the TCEQ’s interpre tation is both consistent with the statutory lang uag e an d re as onable. See
TGS-NOPEC , 340 S.W .3d at 439. We first consider the Hutto landowner s’ argu m ent that the
T C EQ’s interpre tation is inconsistent with section 361.087(1) beca use the statute contemplates a maxi mum of two persons or entities appea ring on the permit, the owner of the land and the “oper ator

or person in char g e of the fac ility ,” if differ ent from the landowner

. See Tex. Hea l th & Safety 4
Code Ann. § 361.087(1). The landowner s asser t that the TCEQ’s incorporation of the chapte r 330 definition of “oper ator” into section 361.087(1) contra di ct s the plain lang uag e of the statute beca use the chapte r 330 definition includes partial opera tors of a fac ility

. See 30 Tex. Admin. Code § 330.2(91) (including “per son(s) responsible for opera ting the fac ility or part of a facility ” in “oper ator” definition (empha sis added) ). As a result, the landowner s contend, multipl e opera tors might be included on the permit, despite the statutory lang uag e requiring the inclusion of only “ the
person who is or will be the opera tor or person in char g e of the fac ility .” See Tex. Hea lth & Safety Code Ann. § 361.087(1) (emphasis added)

. I n this case , it is u n d i s p uted t hat W aste Manag ement is the only

entity that fits the chapte r 330 definition of “oper ator” of the landfill. We disa g ree that

We note that section 361.087(1) require s a permit to include “t h e n am e an d address of 4 each pe rson who owns the land on which the solid waste facility is located and the person who is or will be the opera tor or person in char g e of the fac ility .” Id. § 361.087(1) (empha sis added)

. Thus, the plain lang uag e of the statute cont em p l at es that there may be multipl e landowner s listed on a permit, but only

one “ope rator or

person in cha

rg e of the fac ility .” 13the TCEQ’s interpre tation of the statute nece ssarily would lead to the inclusion of multipl e opera tors

on the permit in a case that also inv o l v ed partial fac ility opera tors. We rea d the term “per son in char g e of the fac ility ” in section 361. 0 8 7 (1) as clar ify ing that if there are multipl e opera tors, the
p er m it should list only the entity responsible for overa ll opera tions, if the entity responsib l e fo r

o v e r a ll o p e r a

ti o n s d if f e r s f r o m th e o w n e r . Co n s e q

u e n tl y , w e c o n c lu d e th a

t th e T CE Q ’ s in

te r p r e ta ti o n 5 is consistent with section 361.087(1)’s lang uag e.

We next analy

ze whether the TCEQ’s ap p l i ca t i o n of the chapte r 330 definition of “oper ator” to section 361.087(1) is rea sonable and thus due defe renc e from us. The TCEQ interpre ts the term “oper ator” under section 361.087(1) an d chapte r 330 to mean the entity responsible for
manag ing da

y -to-day opera tions at the landfill. The TCEQ Executive Dire ctor’s pr imary witness, Pladej Prompuntag orn, a staff eng ineer in the Municipal Solid Waste Permits Section, testified that the TCEQ wants to know if there is an opera tor differ ent from the per m i t h o l d er s o that the

I n a rela ted arg ument, the Hutto landowner s also contend t h at the TCEQ should have 5 applied chapte r 305’s definition of “oper ator” beca use they arg ue it is more consistent with section 361.087(1) of the health and safe ty code, if we acc ept their interpre tation that “oper ator” and “[t] he person in char g e of t he fac ility ” both mean the entity with ultimate responsibility for the landfill. See 30 Tex. Admin. Code § 305.2(24) (2004) (Tex. Comm’n on Envtl. Quality , Def initions )

. Ch a

p ter 305 define s “oper ator” as “[t] he person responsible for the overa ll opera tion of a fac ility .” Id. Thus, the on l y d i ff

er ence betwee n the chapte r 305 definition and the chapte r 330 definition is that the cha pter 330 definition of “oper ator” also includes opera tors of only part of the fa cility

. See id. § 330.2(91) (def

ining “oper ator” ) (2004) (Tex. Comm’n on Envtl. Quality , Def initions ). As a result, in this case , the TCEQ’s desig nation of Waste Manag ement as the “oper ator” satisf i es both the c h a p te r 3 3 0 d e f

in it io n a n d th e c h a p te r 3 0 5 d e f

in it io n b e c a

u s e it is u n d is p u te d th a

t Wa s te M a

n a g e me n t is the only

entity that provides “da

y -to-day landfill manag ement ser

vices” at t he landf

ill. W e find that the TCEQ corr ectly based the conclusions o f l aw i n its order on the chapte r 330 definitions. Chapter 305 of the TCEQ rules cover s “Consolidated Permits” an d t h u s has some application to landfill permits, bu t ch ap ter 330 conce rns “Municipal Solid Waste” and thus more specific ally applies to the permit at issue here

. See Horizon/CMS Healthcare Corp. v. Auld , 34 S.W .3d 887, 901 (T ex . 2 000) (noting traditional statutory -construc tion principle that more specific statute controls over more g ener al statute whe n provisions are ir rec oncilable)

. 14ag ency can contac t the entity in char g e o f day -to-day opera tions if nece ssary . Under the TCEQ’s

interpre tation, a permit will include more information about the landfill’s opera tion, rathe r than less, which promotes acc ountability and enfor ceme nt of the TCEQ’s rules conce rning landfill opera tion.
See T ex . Gov’t Code Ann. § 311.023(1). This interpre tation is rea sonable and does not conflict with the statute’s plain lang uag e; thus, we de fer to it. 6

Proper subm ission of the application
T h e H u t t o l a n d o w n e r s a l s o c h a l l e n g e t

h e T C E Q ’ s c o n c lu s io n th a

t Wa s te M a

n a g e me n t’ s submissi on of the permit application on the County ’s behalf satisfied the TCEQ’s rules. Chapter 305 of title 30 of the administrative code conce rns the standards and require ments for “Consolidated Permits.” See 30 Tex. Admin. Code § 305.1 (2004) (Tex. Comm’n on Envtl. Qu al i t y , S co p e and Applicability ). Rule 3 0 5 .43(b) provides that “it is the dut y of t he owner of a facility to submit an application for a permit

. . . unles s a fa ci lity is owned by one person and opera ted by another , in which case it is the duty of the opera tor to submit an applicati o n fo r a p er mit.” 30 Tex. Admin. Code § 305.43(b) (2004) (Tex. Comm’n on Envtl. Quality , Who Applies ). C h ap t er 305 define s

The Hutto landowner s contend that “[t] he TCEQ’s err oneous interpre tation of the Hea lth 6 & Safety Code has potentially serious ramifications re lated to ow nership and control of a valuable p u b li c a s s e t, a

n d f o r th e la n d f il l p e r mi tt in g s y s te m. ” T h e y e xp r e s s c o n c e r n th a t if Wa s te M a

n a g e me n t is listed on the permit as the “oper ator,” it may arg ue in the future that it is there fore the “per son in char g e of the fac ility ” and that it is somehow entitled to a n owner ship inter est in the landfill or the permit. We note that the administrative re cord shows that the AL J s deter mined that TJ FA (one of the appellants here ) is competitive with W as t e M anag ement and was desig ned to intervene in proce eding s involving landfills opera ted by its sister companies’ competitors, and thus removing all ref ere nces to Waste Manag ement from the permit might serve T J FA’s competitive interests. We need not rea ch the Hutto citizens’ arg uments ab o u t h y p o th e tic al results of an err oneous interpre tation of the code, howeve r, beca use we conclude that the TCEQ’s interpre tation is rea sonable. See Tex. R. App. P. 47.1 (cour

t of appea ls must hand down written opinion that is as brief as prac ticable but that addre sses eve ry

issue raised a

nd nece ssary

to final dispositi on of appe al). 15“oper ator” as “[t] he person responsible for the overa ll opera tion of a fac ility ” and “owne r” as “[t] he

person who owns a fac ility or part of a fac ility .” See 30 Tex. Admin. Code § 305.2(24) (“ope rator” ), (26) (“ow ner” ) (2004) (Tex. Comm’n on Envtl. Quality , Def initions ). The Hutto landowner s ag ain
urg e that Waste Manag ement cannot be the “oper ator” under chapte r 305 beca use the County reta ins responsibility

for the ove rall oper ation of the landf ill as owner a

nd permit holder.
We apply traditional principles of statutory construction to rules. See TGS-NOPEC , 340 S.W .3d at 438. When we construe rules, we asce rtain and g ive eff ect to the ag ency ’s intent as

ex p re s s ed by the rules’ lang uag e. Id. at 439. I f a rule uses a term with a particula r meaning o r assig ns a p ar t icular meaning to a term, we apply that meaning

. Id. We ty pically g ive undefine d
terms in a rule their ordinary m ea ning, but if the term’s use in the context of the rule makes

a d i ff er en t or more prec ise definition applicable , we apply that meaning

. Id. And if a rule is

u n a mb ig u o u s , w e a d o p t th e in

te r p r e ta ti o n s u p p o r te d b y it s p la in la

n g u a g e u n le s s s u c h a

n in te r p r e ta ti o n

w o u ld le a d to a

b s u r d r e s u lt s . I

d

. We c o n s id e r r

u le s a s a w h o le r a

th e r th a n c o n s id e r in g th e ir p r o v is io n s in isolation. Id.

We will apply these principles to deter mine whethe r rul e 305.43(b) is ambig uous. The rule establishes that it is the opera tor’s duty to submit the application when the owner does not

o p e r a te th e f a c il it y . T h e d e f

in it io n o f “ o p e r a

to r ” is “ [t ]h e p e r s o n r e s p o n s ib le f o r th e o v e r a ll o p e r a

ti o n of a fac ility ,” but rule 305.2, which provides the ap p l i ca b l e d efinitions for chapte r 305, does not provide a definition of “oper ation.” A dictionary definition of “oper ation” is “doing or perf orming esp[ecially ] of action,” and as noted ear lier, “oper ate” has been define d as “to cause t o fu n ct ion usu[ally ] by direc t persona l eff ort.” Webster’s Third New I nt’l Dictionary 1581 (2002). Thus, the plain meaning of the TCEQ’s definition of “oper ator” is the entity respo n s i ble for its persona l

16perf

ormanc e of causing the landfill to fun ct i o n . W e find that rule 305.43(b) is unambig uous and that the TCEQ proper ly conclude d that Waste Manag ement’s submissi on of the application on the County ’s beha lf comported w ith the rule.

To the extent that the orig inal application incorre ctly identified both the County and Waste Manag ement as a

pplicants on one pag e, there is substantial evidence in the rec ord showing that the County proper ly clar ified, throug h both a written statement and testimony , that the County

was the applicant and that the County intended that it be the only holder of the permit, i.e., the “site
opera tor” as define d by rule 330.2(132). See 30 Tex. Admin. Code § 305.2(132). We conclude that the TCEQ corr ectly found that the County was the applicant and deter mined that the County satisfied the require ments of rule 305.43(b) by having Waste Manag ement submit the application on the County ’s beha lf. We overr ule the Hutto landowne rs’ fir st issue.
Drainage The Hutto landowner s’ second issue conce rns what an applicant must show about the proposed landfill’s eff

ect on natura l draina g e patterns. The landowner s asser t that the TCEQ’s order violated a statutory provision beca use the TCEQ applied its own rule rela ted to what an application
must show about draina g e patterns in a manner contra ry to its statutory mandate. Alterna tively , they

co n t end the order was arbitrary and capricious and not supported by substantial evidenc e because the TCEQ ignor ed its own standards when deter mining that natura l draina g e patterns would not be signific antly altere d by the proposed landfill development. The TCEQ and the County respond that the TCEQ’s interpre tation of its own rules is entitled to defe renc e, the Co u nty ’s application complied with those rules, and the County provided substantial evide nce of that compliance

.

17The TCEQ’s interpretation of rule 330.56(f) (4)( A)(iv) The TCEQ r

u le s r e q u ir e a n a p p li c a ti o n f o r a p ermit amendment to include “discussion and analy ses to demonstrate that natura l draina g e patterns will not be signifi ca n t l y altere d as a result of the proposed landfill development.” See 30 Tex. Admin. Code § 330.56(f) (4)( A)(iv) (2004) ( T e x. Co mm ’ n o n E n v tl

. Q u a li ty , A tt a c h me n ts to th e Si te D e v e lo p me n t Pl a n )

. T h e H u tt o la

n d o w n e r s contend that the TCEQ’s interpre tation of this rule conflicts with its statutory mandate to “saf eg uard the health, welfa

re, and phy sical proper

ty of the people and to protec t the environment.” Tex. Hea lth
& Safety Code Ann. § 361.00 2 (a ). Specifica lly , the landowner s complain that the TCEQ did not consider the impact of incre ased stormwater runoff on neig hboring proper ties or downstrea m bodies

o f wa ter. I nstead, the TCEQ analy zed the County ’s evidenc e of the runoff volumes and rate s at the landfill’s boundar

y . The Hutto l andowne rs arg ue that downstrea m eff ects must be conside red when assessing the impact of potential chang es to natura l draina g e patterns. They do not, howeve r, explain exactly wher e or how the County should have analy zed the downstrea m eff

ects of potential incre ased r

unoff. The Hutto landowner s’ arg uments ultimately challeng e the TCEQ’s interpre tation of rule 330.56(f) (4)( A)(iv)

. They conce de that “[i] f correctly applied, this TCEQ rule would be consistent with the L eg islature’s command” to safe g uard people’ s proper ty and the environment. 7

The Hutto landowner s also contend that the TCEQ’s policy is not “‘in harmony ’ wit h 7 the g ener al objecti v es o f t h e leg islation involved” and thus is improper as a matter of law, citing Gulf Coast Coalit ion of Citi es v. Public Utiliti es Commission , 1 6 1 S .W.3d 706, 711-12 (Tex. App.—Austin 2005, no pet.). Gulf Coast , howeve r, involved a validity challeng e to an ag ency rule, not a challeng e to the ag ency ’s interpre tation of its rule. Id. As we explained in Gulf Coast , whether the rules are “in harmony ” with the g ener al objectives of the leg islation involved is the deter mining fac tor in whether

the ag ency

has excee ded its rulemaking authority

. Id. at 711.

18Thus, the issue we must re solve is w hether the TCEQ has corr ectly interpre ted and applied its rule

in this case. The TCEQ interpre ts rule 330.56(f) (4)( A)(iv) as requiring an analy sis of stormwater discharg e impact only at the permit boundary “to demonstrate that natura l draina g e patterns will not b e s ig n if ic a n tl y a lt e r e d a s a r e s u lt o f th e p r o p o s e d la n d f il l d e v e lo p me n t. ” A s w e p r e v io u s ly me n ti o n e d , wh en there is vag ueness, ambig uity , or room for policy deter minations in a reg

ulation, we wi l l defe r to the ag ency ’s interpre tation unless it is “plainly err oneous or inconsistent with the lang uag e of the statute, reg ulation, or rule.” TGS-NOPEC , 340 S.W .3d at 438. Be cause the lang uag e of the rule require s discussion and analy sis sufficie nt to demonstrate no significan t ef fe ct on natura l draina g e patterns, but provides no further direc tion about what must be shown or wher e, the rule is ambig uous and leave s room for policy deter minations by the TCEQ. See id. Thus, we must consider whether the TCEQ’s interpre tation is inconsistent with t h e rule’s lang uag e or otherwise plainly

err oneous. See id. I f the TCEQ’s interpre tation is rea sonable and in acc ord with the plain lang uag e of the rule, we will uphold it. See Texas Citi zens , 3 3 6 S

. W .3d at 628 (noting that ag ency ’s 8 interpre tation need not be be st or only interpre tation to warra

nt court’s de fer ence ).

The TCEQ points us to two prior contested- cas e hear ings in which it established this 8 interpre tation. See Tex. Comm’n on Envtl. Q uality , An Order approving the Application of North Texas Municipal W

ater District for Municipal Solid W aster Permit No. MSW

-2294 , TCEQ Docke t No. 2002-0745-MSW, S OA H Do cket No. 582-02-3386, at 18 (Oc t. 20, 2003); Tex. Natura l Res. Conserv. Comm’n, An Order denying the application by Blue Flats Disposal, L.L.C ., for Permit No. MSW -2262 , TNRCC Docke t No. 98-0415-MSW, SOAH Doc k et No. 582-98-1390, at 8 (Jan. 2, 2001). We g ive some defe renc e to an ag ency ’s rea sonable interpre tation of its own ambig uous rule when that interpre tation has been adopted in a formal opinion af t er fo rm al proce eding s. See Railroad Comm’n v. Texas Citizens for a Safe Future & Clean W ater , 336 S.W .3d 619, 625 (Tex. 2011). The TCEQ formally adopted the interpre tation requiring downstrea m-impact analy sis only at the permit boundary in this case , as well as in Blue Flats and North Texa s Muni cipal W ater D is tr ic t

. Co n s e q

u e n tl y , w e w il l r e v ie w it s in te r p r e ta ti o n a n d u p h o ld it if it is r e a s o n a

b le a n d c o n s is te n t with the statute’s plain lang uag e. Id. 19The TCEQ asserts that nothing in its rules require s stormwater -dischar g e analy sis

downstream from a fac ility ’s permit boundarie s, and the Hutto landowner s do not point out any other rules that require a downstream a naly sis. The TCEQ explains that it does not r equire downstream

an al y sis, in part beca

use of the site-spec ific nature of landfill desig n, which prec ludes the age n cy from presc ribing criter ia for deter mining wher e and how far downstrea m a dis c h a r g e -impact analy sis bey ond the permit boundarie s would need to g o. The TCEQ further explains that it does not require analy sis of downstrea

m are as bey ond the permit boundarie s beca use those are as will be influence d by varia bles, including water from other source s, that are unrela ted t o the l andfill discharg e. And

as the C o unty points out, the permit boundary is the point at which the discharg es will be at their
p e a k r a te a n d ma xim u m v e lo c it y . A lt h o u g h th e H u tt o la

n d o w n e r s c o n te n d th a

t th e T CE Q ’ s a

p p r o a c h ignor es the appropr iate role of eng ineeri n g j u d gm ent beca use eng ineer s are capa

ble of analy

zing runoff conditions in the landfill’s vicinity , this arg ument does no t ref

ute the TCEQ’s explanation that draina g e patterns in neig hboring ar eas will be influence d by varia bles bey ond its control and

u n rela ted to the landfill or that the permit boundary is the point of any discharg e’s peak rate an d maxi mum velocity

. The TCEQ’s interpre tation of i ts rule as requiring considerati o n of di schar g e impact only at the permit boundary is rea sonable, not in conflict with the rule’s plain lang uag e, and

conce rns a matter within the TCEQ’s administrative expertise. See id. at 630 (holding that ag ency
may appropr iately decline to consider matters bey ond its admi n i strative expertise, including potentially limit less number of fac tors rela ted to “public interest” unrela ted to ag ency ’s express leg islative direc tive). Moreove r, we conclude th at t h i s rea sonable policy deter mination does not conflict with the TCEQ’s statutory mandate to “saf eg uard the health, welfa

re, and phy sical proper

ty of the pe ople and to prote ct the envir onment.” Te x . Hea lth & Safe ty Code Ann. § 361.002(a ).

20Subs tanti al evide nce supporti ng no signi ficant alteration of na t u r a l drainage patterns The Hutto landowner s also contend that even if the TCEQ’s interpre tation of the rule is rea sonable, its finding s about two discharg e points wer e not supported by substantial evidenc e and

wer e arbitra

ry and capr icious beca

use the TECQ ignor ed its own standards. The TCEQ found that the incre ased runoff volum e at t wo discharg e points, Dischar g e Point A and Dischar g e Point B, would be mitigated by controlling the rate of discharg e and that the proposed landfill expansion would not incre ase peak flow rate s signific antly at any discharg e point. The TCEQ also found that the proposed la

ndfill ex pansion would not significa ntly alter na tural dra inag e patter

ns. The Hutto landowner s arg ue that the TCEQ’s finding s are inconsist en t wi t h its own g uidance document, Guidelines for Preparing a Surface W ater Drainage Plan for a Municipal So l i d W aste Facility (“ Guidelines ”). The landowner s also arg ue that the TCEQ err oneously champions a per se rule that 9

a re duction in pe ak flow rate s means there can be no signific ant alter ation of dra inag e patter ns, no matter the a

mount of increa sed volume of r unoff. Both the TCEQ’s position that incre ased volume may be mitigated by a reduc tion in peak flow rate s and its finding s about Dischar g e Points A and B are consistent with the Guidelines

. 1 0

The parties ag ree that the J une 2004 version of Guidelines for Preparing a Surface W ater 9 Drainage Plan

for a Municipal Solid W

aste Facility (“ Guid

e li nes ”) applies to the permit application. The g uidelines hav e b ee n revised; the version of the Guidelines that the parties ag ree applies is available at http:// www.tce q.state.tx .us/assets/public/comm_ex ec/pubs/ar chiv e/rg417.pdf. We take judicial notice of the June 2004 version of the Guidelines

. See Tex. R. Evi d. 201(b)( 2), 204. The Guidelines state that the doc ument is not int ended by the TCEQ to be used as rules 1 0 or policy and that it does not include all acc eptable prac tices. I t provides sug g estions for prepa ring an adequa te surfa ce- water draina g e plan and focuse s on issues that can be used to demonstrate that there is no altera tion in the draina g e pattern at a l an d fi l l

. Whil e not rising to the level of rules or policy , the document is indic at i v e of at least som e practice s that the TC EQ finds to be acce ptable methods for c ontrolling surf ace -wa ter dra inag e. 21I n the Guidelines , the TC EQ ex plains that the sig nificant-a lteration issue “is best de termined on a

case -by -ca se basis and is one of profe ssional judg ment.” The Guidelines also state that the TCEQ
cannot set a clea

r-c ut number or perc entag e of chang e that will indicate a signific ant chang e, but an applicant shou l d demonstrate that the landfill expansion’s eff ect on peak flows, volumes, and velocities from eac h permit boundary discharg e point will not signific antly alter draina g e patterns. These three fac tors are not completely independe n t o f ea ch other, howeve r. For example, the Guidelines explain that ty

pical me thods for demonstrating that any volume incre ase is not signific ant i n cl u d e, among others, using stormwater rete ntion ponds to control peak flow and demonstra t i n g that the additi onal vol ume wil l be release d at a rate that will not s i gn i fi ca n t l y adver sely aff ect the downstream rec eiving water body

. Simi larly , velocity is a function of t he fl o w ra t e, am o ng other fac tors. The Guidelines explain that the g oal of the landfill’s stormwater manag ement sy stem should b e t o return the stormwater flow to its prede velopment condition befor e it leave s the p er m i t boundary , which is c onsistent with maintaining natura l dr ainag e patterns. The Guidelines sug g est

a c h ie v in g th is g o a l b y lo c a

ting detention-pond outlet structure s and other velocity

- d is s ip a ti o n d e v ic e s upstream from the stormwater discharg e point to allow flow to return t o t h e prede velopment condition at the per

mit boundary

. The County ’s application and the testimony from its lead eng in e e r for the application,
J ames Murra

y (who also serve d as t h e County ’s g ener al expert in landfill permitting, desig n, construction, and opera tion), established that the County ’s desig n for the landfill expansion, which included three detention ponds to control the rate of stormwater discharge, ad equate ly addre ssed the issue of incr ease d stormwater volume. Murra y explained that the County desig ned a dr ainag e

22sy stem for the entire landfill that included “desig ning terra ces and draina g e structure s and rundown

channe ls on the landfill itself, a landfill perimete r sy stem, landfill detention p o n d s , modeling all this and discharging the stormwater at the same locations that the natura l condition discharg es
stormwater .” He testified that the draina g e desig n was based on estimated stormwater -runof f peak flow rate s, volumes, and maxi mum velocities for a 24-hour, 25-y ear storm event, as require d by the TCEQ’s rules. The County compar ed prede velopment (bef ore any landfill) conditions to postdevelopment conditions (i.e., proposed post-closure conditions) when deter mining whether the expansion design sa tisfied rule 330.56(f )(4) (A)( iv).
As Murra y explained, any development of land will g enerally cause an incre ase in runoff volume beca

use there is more impermea ble cover over the land. The d ra i nag e terra ces, perimete r channe ls, and detention paths incorporated into the C o u n t y ’s landfill expansion desig n
gen er al l y cr eate a longe r, more complicated flow path for stormwater

. I n this way , the design minimi zes the eff

ect of any incre ased volume of wa t er by lessening the velocity at which it is discharg ed. Murra

y testified that the primary fac tors in evalua ting natura l draina g e patterns and the eff ect of development upon those patterns are peak flow rate , location of the discharg e points, a nd the flooding conditions at those discharg e points, which include the velocity of the wa t er an d t h e width and depth of the flow in the rec ei v i ng channe ls at or upstream from the permit boundarie s. He explained that volume is part of the calc ulation of peak flow rate

. I n particula r, Murra y testified that althoug h the run o ff v o l u me for a 24-hour, 25-y ear storm event at Dischar g e Point A would incre ase from 62 acr e-f

eet under natural conditions to 90 acre -fe et under the proposed c onditions, the peak discharg e rate would decr ease from 195 cubic fee t per second to 178 cubic fee t per second.

23Simi larly , for Discha rge P o i n t B, althoug h the runoff volume for a 24-hour, 25-y ear storm event

would incre ase from 29 acr e-f eet under natura l conditions to 81 acr e-f eet under proposed conditions, the peak discharg e rate would decr ease from 114 cubic fee t per second to 106 cubic fee t per second.

The Hutto landowner s asser t that the TCEQ depar

ted from its own Guidelines b y considering peak flow rate to be the controlling fac tor when deter mining that the incre ased volume

at Drainag e Points A and B would not signific antly alter natura l draina g e patterns. Although the landowner s corr ectly point out that the Guidelines explain that an applicant must de monstrate that flow rate , velocity , and volume should not chang e signific antly when compar ed to prede velopment conditions, the Guidelines also explain that methods for demonstrating that any volume incre ase is
not signific ant include using stormwater detention ponds and showing that any volume incre ase will be re lease d at a r ate that will not signific antly aff ect the dow nstream r ece iving water body

. There is substantial evidenc e in the rec ord s h o wi n g that the County used these methods to show no signific ant altera tion on natura l draina g e patterns from the incre ased volume at Dischar g e Points A and B. The TCEQ did not act in an arbitra ry and capr icious manner in rea ching this conclusion. We

overr ule the Hutto landowne rs’ sec ond issue.

Soil h ydrology and hydrogeology

I n their third issue, the Hutto landowne rs mount a simil ar challeng e to the TCEQ’s interpre ta ti o n o f its rules about soil testing and g roundwa ter monitoring. Specifica lly , they arg ue that the TCEQ failed to require the County to comply with its rules about horizontal perme ability testing of soil lay ers along the side of proposed excavations and the installation of a g roundwa ter monitoring
sy stem. Be cause the landowner s’ arg uments on this issue implicate the specific s of the evidenc e
24submitt ed by the County about its soil testing and its proposed g roundwa ter-monitoring sy stem, we

will consider whether the TCEQ’s interpre tation of its rules was rea sonable and consistent with the rules’ lang uag e in conjunction with our analy sis of whether the rec ord contains substantial evidenc e
to support the TCEQ’s finding s and conclusions that the County ’s application complied wi t h i t s rules on these issues.

Soil-sam ple testing The TCEQ’s rules require an applicant to establish a g roundwa ter-monitoring
sy stem that will y ield repr esenta tive g roundwa ter s am p l es from the uppermost aquife r, and the
sy stem’s desig n must be base d upon site-spec ific technica l information that includes a thoroug h char acte rization of the g eolog y and hy drog eo l o gy beneath the landfill. 30 Tex. Admin. Code 330.231(a) , (e) (1) (2004) (Tex. Comm’n on Envtl. Qu ali ty , Groundwa ter Monitoring Sy stems). This thoroug h char acte rization must include, among other things, the hy draulic cha ra ct er i stics of the soil lay ers overly ing the uppermost aquife r. Id. 330.231(e) (1). The TCEQ’s rules also require

an application to include a re p o rt that descr ibes the g eotec hnical proper ties of the subsurfac e soil materia ls and includes conclusions about the suitabilit y of the soils and strata for the uses for which they are intended. 30 Tex. Admin. Code 330.56(d)( 5)(B ) (2004) (Tex. Comm’n on Envtl. Quality , Attachments to the Site Deve lopment Plan). The repor t must include a labora tory repor t of soil char acte ristics deter

mined “fr om a

t le ast one sample from eac h soil lay er or stratum that will f orm the bottom and side of the proposed excavation and from those that are less than 30 fee t be low the lowest eleva tion of the proposed excavation.” Id. 330.56(d)( 5)(B )(i). The applicant must perf orm
perme ability tests on “undisturbed samples that repr esent the sidewa ll of any proposed tre nch, pit,

25or ex cavation” on the s ample’s in-situ horizontal axis and all other samp l es m u s t be tested on the

in-situ vertical a x is. Id. 330.56(d)( 5)(B )(ii).

The pe rmit application shows that there are three soil lay ers a t issue: surficial cla y , clay stone, and limestone. The County proposes excavating and disposing waste in the top two lay ers, the surficia l clay and clay st o n e. Dr. Paul Cravens, the County ’s g eotec hnical eng ineer ing expert who revie wed the g eotec hnical re port submitted with the Count y ’s per mit application, said in his pref

iled testimony that the County had tested at least one sample from eac h soil lay er or
stratum that will form th e b ottom and si de of the proposed excavation and also tested one sample from the g eolog ic units that are less than 30 fee t below the lowest eleva tion of the proposed excavation. I n addition, he testified that:
[s] amples of the most repr esenta tive surficia l sidewa l l s o i l s wer e subjected to perme ability tests along their horizontal axes. Samples of the isolated discontinuous coar se-g rained d ep osits encounte red along the easte rn portion of the expansion are a wer e not suitable for labora tory testing for perm ea b i l i t y . I n lieu of this, field hy draulic c onductivity

tests (‘slug tests’) we re c onducted.

He added that all other samples wer e tested for the coef ficient of perme ability on the sample’s in-situ vertica l axi s. The Hutto landowner s rely on the testimony from the TCEQ’s staff g eolog ist w it n e ss, Wesley McCoy , that the County did perme ability tests only on sam p l es of unfra cture d clay stone from the proposed excavation s i t e an d n o t on any samples of fra cture d clay stone to support their
arg ument t hat the County ’s testing did not comply with the TCEQ’s rules. They contend that by
not testing fra cture d clay stone, which has cra cks that might transmit pollutants to s u rr o u n ding

26g roundwa ter, the County did not test repr esenta tive samples of the soil. They base this contention

on the rules’ lang uag e requiring testing of lay ers that “will form” the bottom and side of the proposed excavation and of u n d i s t u rb ed samples that “re prese nt the sidewall” of the proposed excavation. McCoy ’s testimony , howeve r, does not contra dict Dr. Cravens’ s testimony , which indicates that the
C o u n t y took samples from the place s require d under the rules and subjected those samples n o t suitable for labora tory testing for perme ability to a differ ent ty pe of test. Dr. Cravens pointed out

1 1 during his live testimony that core samples containing signific ant fra cture s cannot be taken beca use they would not be in one piec e.

I n addition, the C ounty emphasizes that labora tory perme ability

testing is only one of m ultiple methods that may be used unde r the TCEQ’ s rules to estimate the r ate of g roundwa ter flow beneath t he landfill, and that it conducte d other permissible tests, including in-situ hy draulic conductivity tests (“slu g t es ts”) and testing gr oundwater in piezometers. The Count y ’s geolog ist,
Kar en Gallup, and Dr. Cravens both testified about the results of these tests. Dr. Cravens explained the i mportance of l ooking at all samples and tests to deter m i ne permeability , not just one dis cre te

s am ple in one lay er. The County ’s application contained the rang es of perme abilities for each o f

Even if we deter

mined that there was a co nflict betwee n Dr. Cravens’ s and McCoy ’s 1 1 testimony , the AL J s and the TCEQ, acting as the fac tfinders, deter mine the cre dibilit y of witnesses and the weig ht of their testimony

. See Citi zens Against Landfil l Location v. Texas Comm’n on Envtl. Quality , 169 S

. W

. 3 d 258, 266-67 (Tex

. App.—Austin 2005, pet. denied). We may not substitut e our judgme nt for that of the ag ency on the weig ht of the evidenc e on questions committed to ag ency dis cr et i o n . Texas Health Facilities Comm’n v. Charter Med.- Dallas, Inc. , 665 S.W .2d 446, 452 ( T e x. 1 9 8 4 ) ; s e e a ls o T e x. G o v ’ t Co d e A nn . § 2 0 0 1

. 1 7 4 ( We s t 2 0 0 8 )

. We ma y n o t s e t a s id e a

n a g e n c y decision mere ly beca

use testimony was conflicting or disputed or beca use it did not compel the ag ency ’s dec ision. See F iremen’ s & Policeme n’s Civil Serv. Comm’n v . Brinkmey er , 662 S.W .2d 953, 956 (Tex. 1984). Consequently , if the evide nce w ould support either affirma tive or nega tive finding s on a specific matter, we uphold the ag ency ’s decision. Charter Med. , 665 S.W .2d at 453. 27the three soil lay ers. I t a lso de scribed the rang es of perme abilities for the interfa ces betwee n those

lay ers and the coar se-g raine d materia l in the surficial c lay , which we re the are as under the landfill that Gallup identified as having the pref ere ntial pathway s for g roundwa ter flow beca use they had the
g rea test density

of fr actur es or the g rea test porosity

. We find that the TCEQ’s interpre tation of its rules that soil-sample testing must be conducte d on samp l es t h at “will form the bottom and side of the proposed excavation” and on “undisturbed samples that repr esent the sidewall” of any proposed excavation is rea sonable and not inconsistent with the plain lang uag e o f the rule. Fur thermore , there is substantial evidenc e in the

rec ord that supports the TCEQ’s finding s that the County had adequately char acte rized the g eolog y and hy drog eolog y

of the propose d expansion sit e.

Groundw ater-mon itorin g system The Hutto landowner s also contend that the TCEQ should have require d the County
to install a g roundwa ter-monitoring sy stem that included placing monitoring wells in the clay stone lay er, which is the middle lay er betwee n the surficia l clay an d limestone lay ers, rathe r than only

at t h e co n t ac t z ones betwee n the three lay ers. This contention is based on their asser tion that the
C o u n t y failed to establish the horizontal perme ability of the fra cture d portions of the clay s t o n e beca use i t did not test what they consider to be “r epre sentative” soil samples. The Count y place d
3 5 p i ez o m et ers within the lay ers of surficia l clay and lower clay stone-upper limestone. Gallup testified that the Count y i d en t ified the clay stone-limestone interfa ce as more perme able than the clay stone alone. I n addition, the soil s am p l es showed a preva lence of vertica l and subvertica l 1 2

The TCEQ found th at the clay stone-limestone unit forms the lower boundary of the 1 2 uppermost aquife r and is the only strata available to monitor subsurfa ce w ater for the e ntire site. 28fra cture s in the clay stone. Gallup testified that any water in the clay stone will move fr o m less

perme abl e p at h s to more perme able paths and will also be aff ecte d by g ravity and beg in moving downwar d, even if

it beg ins by

trickling horizontally . As it reac hes its pr efe rential flow path, that
water will be direc ted toward the piezometer near est it in the clay stone-limestone interfa ce. Thus, there is no need to install piezometers solely wi t h i n the clay stone stratum. The proposed
g roundwa ter-moni t oring network of wells was desig ned to monitor g roundwa ter flow in the pref ere nt i al p athway s. The TCEQ’s rules require the g roundwa ter-monitoring sy stem to have a

“ s u f f ic ie n t n u mb e r o f mo n it o r in g w e ll s , in s ta ll e d a t a p p r o p r ia te lo c a ti o n s a n d d e p th s . ” I

d

. 3 3 0

. 2 3 1 ( a )

. The substantial evidenc e in the rec ord supports the TCEQ’s finding s that the “propose d g roundwa ter monitoring wells will be place d at appropr iate depths at the base of the uppermost aquife r,” and “[i] t is not nece ssary to monitor the clay stone stratum itself other t h an at the levels anticipated in Wil liamson County ’s proposed g roundwater monitoring sy stem” and other finding s rela ted to the groundwa ter-monitoring sy stem’s compliance wi t h the TC EQ’s rules. We overr ule t he Hutto landowner s’ third issue.

Land use The T C E Q concluded that the proposed landfill expansion “is compatible with

s u r r o u n d in g la n d u s e s , ” a s r e q

u ir e d b y s e c ti o n 3 6 1

. 0 6 9 o f th e h e a lt h a n d s a f e ty c o d e . T e x. H e a lt

h & Safety Code Ann. § 361.069 (West 2010). I t made ten finding s of fac t in support of that conclusion. The Hutto landowner s asser t in their fourth issue that the TCEQ err ed by concluding that the County demonstrated the compatibility of the proposed landfill expansion with surrounding land uses. The landowner s arg

ue that the County did not car ry its burden to prove land-use compatibility beca use
29it only provided basic information about land use in its case -in-chie f and waited until its rebuttal to

provide an expert witness to addre ss land use. They complain about both the TCEQ’s interpre tation of its rule and the sufficie ncy of the infor

mation supplied by

the County

. The TCEQ’s interpretation of 30 Tex. Admi n. Code § 330.53(b)(8) The TCEQ’s rules require a permit-ame ndment applicant to provide a land-use map (with detailed require ments) and information about (1) zoning at the site and in the vicinity , (2) char acte r of surrounding land uses within one mile of the proposed fac ility , (3) g rowth trends of the near est community with direc tions of major development, (4) proxi mity to residenc es and other uses (e.g ., schools, churc hes, cemeteries, historic structure s and si tes, arc haeolog ically signific ant sites, sites having exc epti onal aesthe tic quality , etc.) , including the approximate number of residenc es and businesses within one mile of the proposed fac ility and their distances and direc tions, and (5) descr iption and discussion of all known wells within 500 fee t of the proposed site. 30 Tex. Admin. Code § 330.53(b)( 7), (8) (2004) (Tex. Comm’n on Envtl. Quality , Tec hnical Requirements of P art I I of t he Applica tion). The Hutto landowne rs do not dispute that the C ounty provided thi s information with its application. I nstead, they contend that “the County wa s re q uired to prese nt

some evidenc e that the information was analy zed by a qualified person, and that this person found land use compatibility ” beca use the rules require “the applicant to ‘consider ’ land use compatibility throug h actua l analy sis, rather tha n simply prese nting a

list of information.” (Emphasis adde d.) The plain lang uag e of the rule does not support the Hutto landowner s’ arg ument. The rule states the following :

30L and use. A primary conce rn is that the use of any land for [a municipal solid waste]

site not adver sely impact hum an health or the e nvironment. The impact of t he si te upon a city , community , g roup of proper ty owner s, or individuals must be considere d in terms of compatibility of land use, zoning in the vicinity , co m m u n ity g rowth patterns, and other fac tors associate d with the public interest. To assist the exe cutive director in evalua ting the impact of the site on the surrounding are a, the applicant shall provide the f

ollowing [information listed above].

30 Tex. Admin. Code 330.53(8) (empha sis added)

. I t is clea r from the context of the para g raph that the executive direc tor must consider and evalua te the site’s impact and the appl i ca n t as s ists the executive direc tor in that endea vor b y p ro v i d ing the reque sted information. But even if the
para g raph wer e ambig uous, we would defe r to the TCEQ’s rea sonable interpre tation of the rule as only requiring the reque sted in fo rm ati on from the applicant, not any kind of additional land-use analy sis by

the applica

nt. See Tex as Citi

zens , 336 S.W .3d at 628 (Te x . 2011).

Subs tanti al evidence

of land-use com

patibili ty The Hutto landowner s also challenge wh ether the information submitt ed by the County suffice d to car

ry its burden of proof of land-use compatibility , espec ially co n ce rn i n g the
g rowth trends of Hutto, primarily based on the County ’s failure to produce an expert witness until its

r e b u tt a l. T h e Co u

n ty in tr o d u c e d r e b u tt a l te s ti mo ny a

n d a r e p o r t f r o m Jo h n Wo r

r a ll , a la n d

- u s e e xp e r

t,
to rebut testimony from the Hutto landowner s’ land-use compatibility witness, Dr. David Bor rer , superintende nt of Hutto I

ndepende nt School District (“H utto I SD”). Dr. Bor rer testified about the rela tionship of the landfill expansion to land that Hutto I SD had rec ently purcha sed near the exis ting landfill and the g rowth of Hutto g ener ally

.

Wo r r a ll in c lu d e d in f

o r ma ti o n in h is repor

t that supplemented the in f o r ma ti o n s u p p li e d by the County in its application. He discussed exis ting conditions around the curr ent landfill, which

31has been in opera tion since 1983 and has an anticipated l i fe o f b etween 25 and 50 y ear s without

the expansion. The evidenc e showed that approximately 92% of the land within one mile of the landfill is either ag ricultural or commerc ial and industrial. There are no zoning restric tions beca use the l and is outside Hutto’s munic i p al l imits and it s extraterritorial jurisdiction. At the t ime of t he application, there wer e no schools within one mile of the landfill (Hutto I SD did not purcha se land

near the landfill until Aug ust 2007). There wer e also no day -ca re cente rs, churc hes, arc haeolog ically signific ant sites, or sites of exceptional ae sthetic value.

Worrall also discussed Hutto’s status as the fastest g rowing community in Texas and various estimates of its population. He testified about the likely direc tion of Hutto’s g rowth and the various ty pes of expected g rowth, i.e., instit utional, residential, and commerc ial. The City of Hutto’s
2006 Gro wt h Gui dance Plan char acte rized future development of the are a around the curr ent landfill as “instituti onal,” which Worrall t est ified is a desig nation compatible with both a landfill and a school. I n short, there is substantial evidenc e in the record supporting the TCEQ’s findings of fac t about land-use compatibility , which support its conclusions that the application contains the technica l information require d un d er rule 330.53(b) and that the landfill expansion is compatible with surrounding land uses. We over rule the H utto landowners’ fourth issue.
Revised operat ing h ours

I n their fifth issue, the Hutto landowner s challeng e the TCEQ’s re v i s i o n of the
opera ting hours p ro p o s ed by the AL J s. Although the application had proposed that the landfill
opera te 24 hours a day , seven day s a wee k, the AL J s rec ommended authorizing the County to opera te the landfill from 5:00 a.m. until 8:00 p.m. Monday throug h Fr iday and from 6:00 a.m. until 4:00 p.m.

32on Saturday

. The AL J s also proposed that t h e C o u n t y be allowed to opera te t he landfill 24 hours

a day , seven day s a week i n an em er gency situation for the emer g ency ’s duration and left it to the discretion of the executive direc tor of the TCEQ to deter mine what conditions would constitute

an emer g ency . The AL J s fo und that opera ting the landfill 24 hours a day , seven day s a wee k in

non-eme rg ency

conditions “may

be incompatible with surr ounding la nd uses.” The TCEQ revised the landfill’s opera ting hours in its final order and distinguished betwee n hours that the County is authorized to acc ept waste at the landfill and hours that it is authorized to opera te hea vy equipment and tra

nsport materia ls to and from the landfill. Whil e the
waste- acc eptanc e hours rema ined the same as those rec ommended by the AL J s, the TCEQ expanded the hours during which the County may opera te heavy equipment and transport materia ls to and from the landfill to 3:00 a.m. until 10:00 p.m. Monday throug h Saturday , an addition of 29 opera ting hours
per wee k. I n the order ’s explanation of chang es, the TCEQ said that it modified the hours “to clar ify the differ ent ty

pes of opera ting hours” at the landfill and that it deter mined these to be “appr opriate fac ility opera ting hours.” See 30 Tex. Admin. Code § 330.118 (2004) (Tex. Comm’n on E nvtl. Quality , Fa cility Oper ating Hours). The TCEQ did not, howeve r, provide any explanation or support for the e x pansion of hours for the opera tion of heavy equipment and tra

nsportation of mater ials to and from the landfill. See Tex. Health & Safety Code Ann. § 361.0832(f) (West 2010) (requiring TCEQ to “fully explain” in its order “the rea soning and g rounds for overturning eac h finding of fac t

or conclusion of law or for reje cting any proposal for decision on an ultimate finding ”); accord Tex. Gov’t Code Ann. § 2001.058( e) ( West 2008). 1 3

Simi larly to section 361.0832(f) of the health and safe ty code, section 2001.058(e) of the 1 3 g overnme nt code provides that a state ag ency must state in writing the specific rea son and leg al basis 33The Hutto landowner s asser t that the TC E Q err oneously overturne d the AL J s’ finding s and conclusions o n o p era ting hours beca use the Commi ssion failed to addre ss whether extending the landfill’s hours for opera tion of heavy equipment and transporta tion of materia ls was compatible with surrounding land uses. See Tex. Hea lth & Safety Code Ann. § 361.0832(c) -(d) (allowing TCEQ to overturn underly ing fi n d i ng of fac t only if not supported by g rea t weig ht of evidenc e and to overturn conclusion of law only if clea rly err oneous under prec edent and applicable rules). The TCEQ acknow ledg es that the AL J s intended for all the landfi l l ’s o p er ations to be conducted during the rec ommended opera ting hours beca use they did not distinguish among the differ ent t y

p es o f hours that the ag ency ’s rule established. See 30 Tex. Admin. Code § 330.118 (providing defa

ult waste- acc eptanc e hours of 7:00 a.m. until 7:00 p.m., Monday throug h Fr iday , and defa u l t p rohibition of heavy -equipment opera tion and materia ls transporta tion betwee n 9:00 p.m. and 5:00 a.m., unless otherwise approve d). As a result, the TCEQ should have explained in its

o r d e r w h y it r e

je c te d th e A L Js’ f

in d in g s . S

e e id

. § 3 6 1

. 0 8 3 2 ( f

) ; T e x. G o v ’ t Co d e A nn . § 2 0 0 1

. 0 5 8 ( e )

. By failing to do so, it has violated section 361.0832(f) and exceede d its statutory authority by overturning the AL J s’ finding s with no explan at ion of its rea soning and g rounds for so deciding

. See Tex. Gov’t Code Ann. § 2001.174; see also State v. Mid-South Pave rs, Inc. , 246 S.W .3d 711,

f o r a c h a n g e ma d e to a f

in d in g o f f

a c t, c o n c lu s io n o f la

w , o r o r d e r is s u e d b y a

n A L J. T e x. G o v ’ t Co d e Ann. § 2001.058(e) (Wes t 2008). Although section 361.0832(c) -(e ) provides a differe nt standard under which the TCEQ’s g rounds for a chang e are revie wed than that provided in section 2001.058(e) (1)- (3), the provisions in both statutes requiring a written explanation of the rea soning and g rounds for a chang e are simil ar enoug h to permit us to consider case s apply ing this portion of section 2001.058(e) when analy zing whether the TCEQ adequately stated its rea soning and g rounds for revising the landfill’s hours of operation. See Tex. Health & Safety Code Ann. § 361.0832(g ) ( We s t 2 0 1 0 ) ( e s ta

b li s h in g th a

t th is s e c ti o n c o n tr o ls if c o n f li c t a r is e s b e tw e e n it a

n d s e c ti o n 2 0 0 1

. 0 5 8 ( e ) of g overnme nt code)

. 34722-23, 728 (Tex. App.—Austin 2007, pet. denied) (explaining that neutra l fac tfinder in contested

case s and limit ation on ag ency ’s discretion to make chang es to AL J ’s proposed decision play important roles in protec ting due proce ss).

We note that in response to the landowner s’ arg ument, the TCEQ and the County contend that the hours the TCEQ authorized are compatible with s urrounding land uses and wer e supported by ample evi d ence . But the issue here is whether the TCEQ adequately explained the

rea soning and g rounds for its chang e to the hours. See Levy v. Texas State B d

. o f Me d

. E xa m’rs , 996 S.W .2d 813, 816 (Tex. App.—Austin 1998, no pet.) (holding that ag ency is require d to articula te its speci fic rea son for eac h individual chang e made to AL J ’s proposal for decision and ref using
to consider whether substantial evidenc e supported ag ency ’s order that pro v i d ed insufficient expla n at i on for chang es). The TCEQ reje cted the hours of opera tion that the AL J s deter mined to be appropr iate and expanded those hours, but in its written explanation stated only that it modified the applicable finding of fac t and order ing provision t o cl ar ify differ ent ty pes of hours. This explanation does not satisfy the statutory standard. The code require s the TCEQ to “fully explain” why the AL J s’ finding s establishing the landfill’s opera t ing hours wer e not supported by the
g rea t weig ht of evidenc e when overturning those finding s . S ee Tex. Hea lth & Safety Code Ann. § 361.0832(c) , (f)

. The TCEQ failed to provide its rea soning and g rounds for expanding the hours for heavy -equipment opera tion a nd materia ls tra

nsport by 29 hours a wee k. See id. § 361.0832(f) ; Tex. Gov’t Code Ann. § 2001.058(e) ; see also Levy , 996 S.W .2d at 815-16 (holding that ag ency failed to art iculate rational connec tion betwee n statutorily allowed g round for chang e and chang e order ed by

ag ency to AL J ’s finding s of fa ct and c onclusions of law).

35W e t h ere fore hold the order insufficient under health and safe ty co d e

section 361.0832 and sustain the Hutto landowner s’ fifth issue. We will rema nd the case to t he 1 4 TCEQ for further proce eding s consistent with this opinion. See Freightliner Corp. v. Motor Vehicle Bd. of Tex. Dep’ t of Transp. , 255 S.W .3d 356, 365-66 (Tex. App.—Austin 2008, pet. denied) (“Courts are leg islatively empower ed to limit the scope of a rema nd to the part of an o rd er that contains err or.”) ; see a l

s o T ex . Gov’t Code Ann. § 2001.174 (allowing courts to aff irm ag ency decision in whole or in part and rema nd case for further proce eding s if appellant’ s substantial rig hts have been prejudice d becaus e decision violates statutory provision or exceeds ag ency ’s statutory authority ). On re mand, the TCEQ may resume exercising its di scre tion from the point at which it exceede d its authority , i.e., when it issued the order that failed to explain its rea soning and g rounds for chang ing the opera ting hours. See Freightliner , 255 S.W .3d at 366 (holding that appellate court’s

rema nd to ag ency that was limit ed in scope allowed ag ency to resume exercising discretion from point at which it exceede d its authority and did not allow ag ency to rec onsider deter mination on another issue that appellate court held was supported by substantial evidenc e); see also Texas Health
F a c ilities Comm’n v. Nuece s Cnty. Hosp. Dist. , 581 S.W .2d 768, 770 (Tex. Civ. App.—Austin 1979 ,

n o w r it ) ( a

p p r o v in g d is tr ic t c o u

r t’ s r e ma n d o f c a s e to a g e n c y th a

t li mi te d r e ma

n d to r e c o r d p r e v io u s ly made be fore ag ency

).

The Hutto landowner s seek to restric t the landfill’s hours of opera ti o n t o t h ose 1 4 rec ommended by the AL J s. We note, howeve r, that we may not sub s titute our judgme nt for the TCEQ’s judgme nt by aff

irming the AL J s’ decision. See Tex. Gov’t Code Ann. § 2001.174. When we find that an appellant’ s substantial rig hts have been prejudice d beca use the ag ency ’s decision violated a statutory provision or exceeded i t s statutory authority , our options are to reve rse or to rema nd the ca se to the ag ency

for f urther pr ocee dings. Id. § 2001.174(2).

36Reallocat ion of costs
I n their six th issue, the Hutto landowner s complain of the TCEQ’s decision to chang e the AL J s’ findi ng that the C ounty should pay the report i n g an d transcr iption costs by rea llocating the costs among the County and the landowner s. At oral arg ument and in its brief, the County stated that “it has not rec overe d, and does n o t i n t end to pursue recove ry of, costs from” the landowner s. We conc lude that the County ’s decision to bear the repor ting and transcr iption costs, as the AL J s

rec ommended, rende rs this issue moot. Consequently , we need not addre ss this issue. See Tex. R. App. P. 47.1 (cour

t of appea ls must hand down written opinion that is as brief as prac ticable but that addre sses eve ry

issue raised a

nd nece ssary

to final dispositi on of appe al).

CONCLUSION Having overr

uled four of t he Hutto landowner s’ s ix issues on appea l, found one to be moot, and sustained its rema ining issue, we aff irm the trial court’s judgme nt in pa rt and reve rse in part. We rema

nd the ca use to the TCEQ for

further proce eding s consistent with this opi nion.

__________________________________________ Diane M. H enson, Jus tice
Be fore Chief J ustice Jones, J ustices Pemberton a nd Henson Affir med in part, Reve rsed a

nd Remanded in pa

rt Filed: Jul y

31, 2012

37