tjfaonline.comconfidential transcript state commission on judical conduct thursday, june 19, 2008 2...

CONFIDENTIAL TRANSCRIPTSTATE COMMISSION ON JUDICAL CONDUCT

THURSDAY, JUNE 19, 2008

TRANSCRIPT OF PROCEEDINGS BEFORE THE STATE OFFICE OF ADMINISTRATIVE HEARINGS TEXAS COMMISSION ON ENVIRONMENTAL QUALITY AUSTIN, TEXAS

APPLICATION OF WILLIAMSON ) SOAH DOCKET NO.COUNTY FOR A PERMIT AMENDMENT ) 582-06-3321TO EXPAND A TYPE I MUNICIPAL ) TCEQ DOCKET NO.SOLID WASTE LANDFILL FACILITY;) 2005-0337-MSWPERMIT NO. MSW-1405B )

HEARING ON THE MERITS

TUESDAY, AUGUST 21, 2007

BE IT REMEMBERED THAT at 9:00 a.m., on

Tuesday, the 21st day of August 2007, the

above-entitled matter came on for hearing at the State

Office of Administrative Hearings, William P.

Clements, Jr., Building, 300 West 15th Street, Room

404, Austin, Texas 78701, before TRAVIS VICKERY,

Administrative Law Judge, and the following

proceedings were reported by Kim Pence and Steven

Stogel, Certified Shorthand Reporters of:

Volume 2 Pages 234 - 472



2 (Pages 235 to 238)

35

1 P R O C E E D I N G S2 TUESDAY, AUGUST 21, 20073 (9:00 a.m.)4 JUDGE VICKERY: Let's go on the record.5 Mr. Dunbar?6 PRESENTATION ON BEHALF OF THE APPLICANT7 (CONTINUED)8 JAMES ROY MURRAY,9 having been previously sworn, continued to testify as

10 follows:11 CROSS-EXAMINATION (CONTINUED)12 BY MR. DUNBAR:13 Q Good morning, Mr. Murray. How are you?14 A Good. Thank you.15 Q Good. I'd like to continue on with you and16 ask you if you would pull out Volume 2 of 5 of the17 application.18 A Okay.19 Q And this is -- starts Part III of the20 application known as the Site Development Plan.21 Correct?22 A Yes, it does.23 Q Okay. And you are the one that prepared this24 particular volume of the application, either by25 yourself or under your direct supervision?

Page 236

1 A That is correct.2 Q Okay. I'd ask you to turn to Page 251 where3 it talks about Floodplain Considerations.4 A Okay.5 Q I want to ask you some questions about6 floodplain considerations. Are you familiar with the7 TCEQ rules regarding determination or identification8 of floodplains in relation to landfills?9 A Yes, I am.

10 Q Okay. And generally what does that rule11 require?12 A That you shall not place floodplains --13 landfills in the floodplains.14 Q Okay. And one of the ways to identify where15 the floodplain is is to use a FEMA floodplain map?16 A That's correct.17 Q Okay. And you've done that in this case.18 Correct?19 A That is correct.20 MR. DUNBAR: Okay. Judge, I'm going to21 want to use a board up there to draw. May I go up22 there?23 JUDGE VICKERY: Certainly. Mr. Dunbar,24 you can pull it up a little bit closer.25 MR. DUNBAR: Okay. I'll move it to

Page 237

1 where you can see.2 JUDGE VICKERY: Okay. That will be3 great. Thank you.4 MR. DUNBAR: How is that?5 JUDGE VICKERY: Yes, that's fine for me.6 Q (By Mr. Dunbar) Mr. Murray, for the sake of7 people in this courtroom who are not familiar with8 floodplains, could you try to explain what a9 floodplain is? And if you need to draw it on here,

10 that's fine.11 A A floodplain is an area inundated by -- by a12 flood, and typically FEMA uses the hundred-year13 floodplain, the limit of the hundred-year flood, to14 define the hundred-year floodplain.15 Q Okay. Is that associated with a roadside16 ditch or a pipe, or is it associated with a creek or17 channel?18 A It would be associated with larger drainage19 areas, yes.20 Q But a creek or a channel?21 A Typically.22 Q Okay. And if you assume with me that that's23 a channel and that's the overbanks of the channel,24 would you agree with me that right about here is25 considered like the channel banks?

Page 238

1 A That would appear to be the channel banks,2 yes.3 Q Okay. And if the water level in the channel4 were here, would you say that channel -- that water5 level is defining where the floodplain is for that6 channel?7 A What water level have you depicted on there?8 Q This one here that's inside the channel9 between the banks.

10 A Is it the hundred-year --11 Q Yes.12 A -- level?13 Q Sure.14 A Then that would be the limit of the15 hundred-year floodplain and the hundred-year floodway.16 Q Okay. And if the water level were instead17 here, where would be the floodplain?18 A Is that the hundred-year flood level?19 Q Sure.20 A Then it would be at the point where that21 water surface intersects the existing ground.22 Q Like right here. Correct?23 A Correct.24 Q Okay. And likewise over at this corner here.25 Correct?



3 (Pages 239 to 242)

Page 239

1 A Yes.2 Q Okay. Now, when we talk about the channel3 that has -- is not overtopped, are we talking about a4 water level that's inside the channel between the5 banks?6 A Typically, yes.7 Q And if the channel gets overtopped, then8 we're talking about the water outside the banks?9 A Typically, yes.

10 Q Okay. And can you refer to this dot here as11 top of bank, T-O-B, for reference purposes?12 A You can.13 Q Okay. Will you agree with that?14 A Yes.15 Q Okay. So the hundred-year floodplain is that16 area associated with the channel that is inundated by17 water associated with the hundred-year event.18 Correct?19 A Yes.20 Q Okay. Is there a 25-year floodplain?21 A There would be if you want to define a22 25-year floodplain, but regulatorily, for instance,23 FEMA uses the hundred-year as the floodplain standard.24 Q Okay. Does FEMA show a 500-year floodplain25 also?

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1 A They do, yes.2 Q Okay. All right.3 A But that's not referenced in the TCEQ4 regulations.5 Q Okay. If you would turn to Page 251 of6 Volume 2 where you talk about floodplain7 considerations --8 A Yes.9 Q -- do you see that? And you -- on the second

10 paragraph under 4.6 of Floodplain Considerations, you11 refer to the FEMA floodplain map, do you not?12 A Yes, I do.13 Q Okay. And you refer to that map and14 reference Figure I/II-7 as showing where that15 floodplain map is. Correct?16 A Yes.17 Q And you say that according to that map, the18 landfill is not located within the limits of the FEMA19 hundred-year floodplain. Correct?20 A That's correct.21 Q Okay. Could you turn to Figure I/II-7?22 JUDGE CARD: Where do we find that23 exactly? I'm sorry.24 MR. DUNBAR: That is in Volume 1 of 5,25 Page 233.

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1 JUDGE CARD: Thank you.2 Q (By Mr. Dunbar) Mr. Murray, do you have that3 figure?4 A Yes, I do.5 Q Okay. And Page 233, it reflects the FEMA6 floodplain map that you're referencing on Page 251 of7 Part III?8 A Yes, it does.9 Q Okay. Does it show on that map the outline

10 of the proposed landfill permit boundary?11 A Yes, it does.12 Q Okay. And that's in the kind of lower13 right-hand corner of that exhibit with the heavy black14 line around it?15 A Yes.16 Q Okay. And where is the FEMA floodplain map17 that's associated with the lower part of that site and18 below that site to see if there's a floodplain19 actually there?20 A This is -- this is the FEMA map that is for21 that area there. It's just that there wasn't any22 floodplain there, and FEMA used that area to place23 some information.24 Q Okay. So this FEMA floodplain map doesn't25 show anything below the words "description of

Page 242

1 location" that's included within the site boundary?2 A Right.3 Q Okay. But right below that description is4 Mustang Creek, is it not?5 A That's correct.6 Q Okay. But on this FEMA map, there's no7 floodplain shown?8 A No.9 Q Okay. Now, you've indicated in your

10 application that you also did some additional analyses11 of the hundred-year floodplain for this site.12 Correct?13 A Yes.14 Q Okay. And that's I believe also discussed on15 Page 251 of the application?16 A Yes.17 Q Okay. And if I may paraphrase to speed this18 along, it's my understanding that you did a19 hundred-year floodplain analysis for both Mustang20 Creek and the unnamed tributary that cuts across the21 property on the north side?22 A That is correct.23 Q Okay. And all those calculations are24 contained in Attachment 3 -- excuse me -- in Part III,25 Attachment 6 of the application?



4 (Pages 243 to 246)

Page 243

1 A Yes, they are.2 Q Okay. And the -- I guess the question I have3 for you is, why did you do that additional floodplain4 analysis?5 A Just out of conservative caution.6 Q I don't understand.7 A I was trying to be extra conservative in8 determining the limits that might be -- that might be9 inundated by the hundred-year floodplain.

10 Q Okay. Is there a TCEQ rule requirement that11 requires you to do that analysis?12 A No, I don't believe so, but in an effort to13 try to be extra cautious and -- we went ahead and did14 the analysis of Mustang Creek and that unnamed15 tributary on the north.16 Q Okay. But in your understanding of the17 rules, there's no requirement that you identify what18 area of the site is subject to a hundred-year flood?19 A It does say the hundred-year floodplain. The20 rule does say that we have to show those areas of the21 site that are within the hundred-year floodplain. If22 I could get the rules, I could -- I could read that.23 Q Do you have the rules in front of you?24 A Yes, I do.25 Q All right. And what rule are you looking at?

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1 A One is -- there are a variety of rules in 3302 that address hundred-year floodplains. One of them is3 330.55(b)(7), which says "The site shall be protected4 from flooding by suitable levees constructed to5 provide protection from the hundred-year frequency6 flood."7 But additionally, 330.56(f)(3), you8 know, requires the hundred-year floodplain to be9 shown. There's a variety of places that the

10 hundred-year floodplain is discussed in the rules.11 Anything in particular that you're looking for?12 Q Okay. So I guess my question is, you had13 indicated you did the hundred-year flood analysis for14 Mustang Creek and the unnamed tributary to the north15 kind of out of the abundance of caution.16 A Yes.17 Q And my question to you was, well, weren't18 there any rules that actually require you to show the19 hundred-year floodplain on the site?20 A The rules do require me to show the21 hundred-year floodplain on the site, and generally22 it's accepted it can be the FEMA maps that can23 designate the location of the hundred-year floodplain.24 And just out of an abundance of caution, we went ahead25 and calculated it in the two streams that -- the two

Page 245

1 creeks that happen to cross the site.2 Q Okay.3 A So that's why we did it.4 Q All right. And I guess -- I guess it's a5 good thing you did because the FEMA map didn't show6 any floodplain on the site, but your analysis did show7 a floodplain on the site. Correct?8 A My analysis wasn't -- it wasn't a floodplain9 in a FEMA way. The reason FEMA didn't show any

10 floodplain there was because there just wasn't any11 floodplain there. So they used that area to add in12 some of their elevation information in the middle of13 the map.14 Q Okay. Well, my question to you is, sir,15 along Mustang Creek within the site boundary of the16 proposed landfill expansion, is there a floodplain17 along Mustang Creek in your opinion or not?18 A There is not a FEMA floodplain along Mustang19 Creek. There is an area that is inundated by the20 hundred-year storm, and we have that delineated21 throughout the application.22 Q Okay. So if I can understand your answer,23 you're saying there is a hundred-year floodplain24 associated with Mustang Creek, but not a25 FEMA-designated hundred-year floodplain?

Page 246

1 A Yes.2 Q And that would be the same on the unnamed3 tributary on the north side of the property?4 A Correct.5 Q All right. And, in fact, if you turn to Rule6 330.56(c) associated with Attachment 3 of the -- of7 Part III of the application, title Existing Contour8 Map, do you see that?9 A Yes.

10 Q And at the very end of that rule, the last11 sentence reads, "The map should show the location and12 quantities of surface drainage entering, existing and13 internal to the site and the areas subject to flooding14 by a hundred-year frequency flood." Correct?15 A Yes.16 Q Okay. So that rule requires you to show the17 area on the site subject to a hundred-year frequency18 flood. Correct?19 A Yes.20 Q And it doesn't say a FEMA floodplain. It21 says just a hundred-year frequency flood?22 A Yes.23 Q But you've done that. Correct?24 A I believe I have.25 Q Yeah, okay. Based upon the analysis you did



5 (Pages 247 to 250)

Page 247

1 for Mustang Creek and the unnamed tributary to the2 north?3 A Yes.4 Q Okay. Did you do any other analyses outside5 the 575-acre site boundary related to drainage or6 flooding or floodplains?7 A We did look at the off-site drainage areas8 that were draining through the -- through Mustang9 Creek and through the north tributary.

10 Q Okay. And these would be areas upstream of11 the site that provides stormwater runoff along the12 streams through the site and then downstream?13 A Yes, upstream and adjacent to, yes.14 Q Okay. And did you look at any drainage15 flooding or floodplain information downstream of the16 site?17 A We looked at floodplain information18 downstream of the site and didn't find any.19 Q Okay. Based upon the FEMA map or based upon20 your own analysis?21 A Based upon the FEMA map.22 Q Okay. But your own analysis shows there is a23 floodplain along those streams. Correct?24 A Yes, and we identified that, yes.25 Q Okay. And my only question to you, sir, is

Page 248

1 did you look at any floodplain of those creeks2 downstream of the site?3 A Yes.4 Q Where?5 A Well, in the analyses, we have both Mustang6 Creek and the north tributary. We go down the stream7 from the site.8 Q Okay. And other than that analysis -- and9 that's in Attachment 6, Part III, of the application?

10 A Yes, sir.11 Q Okay. Other than that analysis, did you look12 downstream from those points?13 A From the points downstream that we took it14 to?15 Q Yes.16 A No.17 Q Okay. Is it possible there's a floodplain18 downstream of where you did your analysis?19 A Downstream -- yes, it's possible there's20 floodplains downstream from where we did our analysis,21 but that's outside the scope of our project.22 Q Okay. And I'm just trying to make it very23 clear where is the limits of where you do your24 analysis and where is the limits of where you did do25 your analysis. So it's clear that downstream of where

Page 249

1 you did your floodplain analysis on the unnamed2 tributary in Mustang Creek, you did no evaluation of3 floodplains, drainage, flooding whatsoever?4 A No. After we -- we went as far downstream as5 we went, and we didn't go any further, that's correct.6 Q Okay. All right. Besides a floodplain7 analysis that the rules require you to identify the8 area subject to flooding within the site, you also had9 to do a drainage analysis. Correct?

10 A Yes.11 Q Okay. And essentially what is a drainage12 analysis that's required by the rules for a landfill13 permit application?14 A Would you like me to read the rules?15 Q Just generally in your own words describe16 what kind of drainage analysis we're talking about.17 A We analyzed the natural condition at and18 around the landfill, the natural drainage condition.19 And then we designed a drainage system for -- for the20 entire landfill, and that includes designing terraces21 and drainage structures and rundown channels on the22 landfill itself, a landfill perimeter system, landfill23 detention ponds, modeling all this and discharging the24 stormwater at the same locations that the natural25 condition discharges stormwater.

Page 250

1 Q Okay. And do you still have those rules with2 you?3 A Yes.4 Q Okay. And if you would, turn to5 Rule 330.56(f)(4)(A)(iv).6 A Yes, sir.7 Q And what does that rule say? You can either8 read it or paraphrase it.9 A "Discussion and analyses to demonstrate the

10 natural drainage patterns will not be significantly11 altered as a result of the proposed landfill12 development."13 Q Okay. And you understand that that is -- or14 do you understand that that's generally the basic rule15 associated with what you have to demonstrate in your16 landfill application to show that you're not going to17 cause any flooding problems off site?18 A No, it says "to show that the natural19 drainage patterns will not be significantly altered as20 a result of proposed landfill development."21 Q Okay. Well, why -- do you have any idea why22 the rule is asking you to make that determination?23 A No.24 Q Okay. Do you know if it's legal for a25 landowner to develop a piece of property and cause



6 (Pages 251 to 254)

Page 251

1 flooding off of his property onto someone else's2 property?3 A I don't -- no, I don't know that.4 Q Okay. As a professional engineer, do you5 know -- do you ever design projects that cause6 flooding downstream of the site that you're doing your7 work on?8 A When we do work, we do it in accordance with9 the requirements of whatever entity we happen to be

10 doing the work for. There are many instances when you11 design a drainage system, and it's just a matter of12 computing what the flows are where you're discharging13 and making sure that your system is properly designed14 to discharge it and not necessarily give any look at15 anything else as long as you're controlling it on16 site.17 So I mean, it's strictly a matter of18 looking at the requirements in this case of the TCEQ19 and what their requirements are for addressing20 drainage on the site. You can go to the city of San21 Antonio, you've got different requirements. Harris22 County has different requirements. The city of Austin23 has different requirements. In this case, I'm not24 aware of any requirements that Williamson County has25 as far as drainage, and so the controlling issue for

Page 252

1 this permit, I believe, is the requirements of the2 TCEQ --3 Q Okay.4 A -- which as you just had me read says5 "Discussion and analysis to demonstrate that the6 natural drainage patterns will not be significantly7 altered as a result of the development of the8 landfill."9 Q And you don't understand that to mean that

10 the TCEQ doesn't want landfill owners or operators11 when they design a landfill, they don't want them to12 cause flooding downstream on other people's property?13 A I don't think it says it anywhere in the14 rule.15 Q Okay. In designing this particular landfill16 with regards to drainage analyses, have you designed17 it so that it will cause flooding to other people's18 property downstream?19 A No.20 Q How do you know?21 A We have analyzed it so that peak discharges22 are discharging -- that we are maintaining the natural23 discharges from the landfill. We're discharging at24 the same locations and at or very near the same peak25 flow rate amounts so that the receiving channels at

Page 253

1 our permit boundary are not getting any more water in2 the 25-year condition than they were in the natural3 condition. So if there is flooding downstream, it's4 flooding in the natural condition. It's not flooding5 as a result of the development of the landfill.6 Q Okay. And you know that because you compared7 peak discharges and they're not greater than -- for8 developing conditions versus natural conditions?9 A Yes, generally, yes.

10 Q Generally or all?11 A Yes, there's one instance where we have a12 very minor increase in the peak discharge. It's two13 cfs over 470-some-odd cfs. It's basically the same14 number. But we analyzed that, we looked at it, it15 doesn't have any effect on the downstream receiving16 channel.17 Q Okay. And how far downstream did you make18 that evaluation?19 A Well, we looked at where we discharged20 because the critical point is where we're discharging21 the -- where we're discharging the stormwater from the22 site. That's the critical point because as you go23 further downstream, you mitigate any effects of the24 development of the landfill. So the critical point is25 that point in which we discharge from the site.

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1 Q Okay. So at those points that you discharge2 from the site, as long as you're not significantly3 altering the natural drainage patterns at those4 discharge points at the permit boundary, then you feel5 like you're not going to cause any problems6 downstream?7 A Yes, we've demonstrated compliance with the8 requirement to not significantly alter the natural9 drainage patterns.

10 Q Okay. And what does "significantly alter"11 mean?12 A Well, it can depend on what the receiving13 drainage conditions are. In our case, we've been very14 conservative, and we have maintained the peak 25-year15 flow rates off the site, which means we maintained --16 or, in fact, lessened the velocities, the critical17 items that come with discharging from the site, the18 velocities, the depth of flooding in the receiving19 channels, the width flooded in the receiving channel.20 So we've either maintained or reduced all those21 things.22 Q Okay. And when you say "receiving channels,"23 are you talking about those channels that receive the24 water from the site right at the permit boundary?25 A Yes, generally, and that's -- you know, that



7 (Pages 255 to 258)

Page 255

1 receiving channel, it may be the length of a field.2 It may be, you know, a sheet flow off of the field, or3 it may be into a roadside ditch, it may be into a4 culvert, it may be into a creek. Those are the5 receiving -- the receiving channels, and that's what6 we look at.7 Q Okay. And did you look at those receiving8 channels and what happened to the water when they got9 in those receiving channels beyond the limits of the

10 permit boundary?11 A Yes, in some instances, we did.12 Q And what instances were those?13 A Well, we looked at it in Mustang Creek and in14 that unnamed tributary that runs across the north part15 of the landfill.16 Q And you're referring there to those portions17 that are included in Attachment 6 where you did your18 floodplain analysis?19 A Yes.20 Q Okay. All right. Anywhere else where you21 looked downstream from the site along those receiving22 channels?23 A No, nowhere else. We didn't need to. We had24 controlled the development of the landfill at our --25 at our critical points.

Page 256

1 Q Okay. And how did you control it?2 A We used detention basins primarily to detain3 the flow off of the landfill and meter out the flow4 from the detention basins so that the flow was either5 at or below the natural condition.6 Q At or below the natural condition with7 regards to peak flow?8 A Yes, peak flow and the resulting velocities,9 depth of floodplain, width of the floodplain, that

10 type of thing.11 Q Volumes, timing, shape, everything?12 A Well, that all figures into the calculations,13 yes.14 Q Okay. If you would turn, sir, to Page 250,15 which is Volume 2 of 5 of the application, where it16 talks about Drainage Impact?17 A Yes.18 Q And on Page 250, you provide a table19 comparing the existing 25-year/24-hour peak flow rates20 to the proposed development 25-year/24-hour peak flow21 rates at various discharge study points. Correct?22 A Yes.23 Q Okay. And as a result of your comparison in24 this table, on the next page, Page 251, you have one25 sentence that says "The proposed peak discharges are

Page 257

1 not significantly altered from the existing2 discharges." Correct?3 A Yes.4 Q Okay. And is that the basis upon which you5 have concluded that this proposed landfill design will6 not significantly alter natural drainage patterns?7 A Very -- in a nutshell, yes.8 Q Okay. And these proposed peak discharges9 that are not significantly altered from the existing

10 discharges, you're referring to those that are shown11 in this table on 250 and 251?12 A Yes, sir.13 Q And these peak discharges are located at the14 permit boundary. Correct?15 A Well, you'd actually have to go to the16 various maps that show these discharge locations.17 Some are at the permit boundaries, some are internal.18 You'd have to look at them.19 Q But at least at the permit boundary none of20 these discharge points are outside the permit21 boundary?22 A No, some -- some, though, are discharge23 points that actually track water coming into the24 landfill, and then you'd have another one that tracks25 it leaving the permit boundary. So I can't say that

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1 all these are showing water leaving the permit2 boundary because they may, in fact, be showing water3 coming onto the permit boundary. You'd need to have4 the various maps to look at to go "Okay. This one is5 here."6 Q Okay. Can you turn or direct us to one of7 those maps?8 A Page 276 shows the natural drainage9 conditions and has all these discharge points.

10 Q All right. I'd like to take a look at that11 particular map and -- can you tell us where Discharge12 Point A is?13 A Discharge Point A is in the southeast corner14 along FM 1660.15 Q Okay. And Discharge Point A is a location at16 the permit boundary adjacent to FM 1660?17 A That's correct.18 Q And stormwater runoff from the site exiting19 the site in that easterly direction goes into the20 FM 1660 roadside ditch and travels southeast?21 A Correct.22 Q Okay. And what is the peak discharge for23 existing conditions of the 25-year event leaving the24 site at Discharge Point A?25 A Using the HEC-1 analysis, that peak discharge



8 (Pages 259 to 262)

Page 259

1 is 100 -- for the 25-year conditions is 195 cubic feet2 per second.3 Q Okay. And for postdevelopment conditions,4 what is it?5 A It would be 178 cubic feet per second. So6 there's about a 17 -- there's a decrease in the peak7 flow rate there.8 Q Okay. And that's shown on this table you9 have on Page 250. Correct?

10 A Yes, that's correct.11 Q Okay. What's the numbers in parentheses next12 to those peak discharges that you just read?13 A Those are the stormwater volumes of the14 25-year/24-hour storm. They represent the amount of15 water discharged during that storm event over 2416 hours.17 Q Okay. And it's the runoff volume associated18 with this area that's discharging at Discharge19 Point A?20 A Yes.21 Q In acre-feet?22 A Yes.23 Q Okay. And I noticed that it goes up by about24 50 percent. Do you notice that?25 A Yes.

Page 260

1 Q Okay. Do you consider that a significant2 alteration of natural drainage patterns?3 A No, I don't.4 Q Why not?5 A Because we've controlled it through the use6 of the detention ponds.7 Q Through the --8 A If we had not used detention ponds, then the9 additional volume would have resulted in an increase

10 in the peak flow rates, and that increase in the peak11 flow rates would have resulted in increases in12 velocities in the receiving channel, possibly causing13 erosion, increases in the depth of flow at the14 receiving channel and increases in the width of the15 floodplain in the receiving channel. Because we've16 used the detention pond to control these volumes and17 meter them out over a longer period of time, we have18 negated any impacts from that increase in volume.19 Q Okay. Have you done an analysis downstream20 of Discharge Point A to determine whether or not what21 you just said is true?22 A No. The analysis we did we did at the permit23 boundary, which is -- which proves what I just said.24 Q Okay. So the analysis you did at the permit25 boundary was as long as the peak discharge at the

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1 permit boundary is lower, predevelopment conditions2 versus existing conditions, you're not going to cause3 a problem downstream?4 A Correct.5 Q Okay. Regardless of how much water you're6 sending?7 A Correct.8 Q Okay. So you could increase the amount of9 water discharging off the site at Discharge Point A by

10 50 percent, 100 percent, 200 percent, 500 percent,11 1,000 percent, 10 times, 20 times, 30 times. It won't12 matter -- right -- as long as the peak discharge at13 the site isn't higher than the existing conditions.14 Correct? That's what you said. Right?15 A Well --16 Q That is what you said, isn't it?17 A If we're controlling the water off the site,18 then the -- if we're discharging the water at the19 permit boundary in a condition where the peak flow20 rate is near or below the existing condition, then we21 have not increased flooding in that downstream22 channel.23 Q Regardless of how much volume of water you're24 discharging. Correct?25 A Right.

Page 262

1 Q Okay.2 A In the downstream channel, regardless how3 much water we're discharging, the flooding condition4 isn't going to get any worse.5 Q Okay. Anywhere downstream. Right?6 A I don't know about anywhere downstream, but7 in the receiving channel, we're not increasing the8 flooding condition.9 Q Okay.

10 A In the downstream receiving channel where11 we're discharging at the permit boundary, we're not12 increasing the flooding condition.13 Q Okay. But further downstream of that14 receiving channel from the permit boundary, you might15 be increasing the flooding?16 A I don't -- we don't know.17 Q Okay. Because you haven't looked at it. You18 haven't analyzed that. Right?19 A No.20 Q Okay. Do you know if the TCEQ requires you21 to look downstream in the receiving channel to see if22 you're going to cause any impacts beyond the permit23 boundary?24 A No, their primary control -- concern is25 controlling -- at the permit boundary is discharging



9 (Pages 263 to 266)

Page 263

1 off of the site.2 Q Okay. So is it your understanding that the3 TCEQ says "Just look at the permit boundary, make sure4 you don't increase the peak flow, and you've met our5 rules"?6 A I guess I'm not sure what -- I wouldn't say7 that's a -- I don't know if that's a fair8 characterization. You're making a characterization.9 I mean, as far as the rules go, they don't say

10 anything about downstream conditions.11 Q No, the rules say, as you correctly read12 them, that there's -- no significant alteration of13 natural drainage patterns are allowed associated with14 the proposed landfill. Correct?15 A Yes.16 Q Okay. And your understanding of "no17 significant alteration" means look at the permit18 boundary and make sure the peak discharge isn't higher19 than prelandfill conditions. Correct?20 A I -- yes, I consider that to be a worst-case21 condition.22 Q Okay. As long as that occurs, you're23 convinced that there is not going to be any flooding24 downstream from the permit boundary along that25 receiving channel or anywhere else downstream as long

Page 264

1 as the peak discharge doesn't increase the permit2 boundary. Correct?3 A There's not going to be any additional4 flooding in the receiving channel. Now, anywhere else5 downstream, I can't say we've looked at that.6 Q So you don't know one way or the other?7 A I don't know if anything is going to occur in8 the Brazos River or the San Gabriel Riever or the Gulf9 of Mexico.

10 Q Okay. How about 1,000 feet downstream from11 the permit boundary?12 A I haven't analyzed it, but I would say13 confidently that, no, there would not be any increase14 in flooding 1,000 feet downstream of the permit15 boundary.16 Q How do you know if you haven't looked at it?17 A Because any of the water that goes to that18 would have already passed by that location; and,19 therefore, the peak flow is still going to be20 controlled by the water that we're discharging. So it21 would not be any higher than it would if the landfill22 wasn't there.23 Q Is that true when it gets to Mustang Creek,24 just maybe 2,000 feet downstream of Discharge Point A?25 A Yes, Mustang Creek would appear to be

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1 actually closer to about 3,000 feet downstream.2 Q I apologize.3 A And it's a much larger drainage area, and I4 did not analyze Mustang Creek that far down. We did5 analyze Mustang Creek downstream from Discharge6 Point C.7 JUDGE VICKERY: I have a question. I8 have a question.9 MR. DUNBAR: Yes, sir.

10 CLARIFYING EXAMINATION11 BY JUDGE VICKERY:12 Q I want to clear up the record. How is it13 that a decrease in the flow rate -- at the boundary,14 how is it that a decrease in the flow rate could ever15 result in an increased rate further downstream as a16 result of the discharge?17 A If you had an increase in -- if you slowed18 down the peak flow rate or the discharge of the storm19 and it got far enough downstream that it happened to20 coincide with -- near the peak of the storm for21 Mustang Creek, you know, then there could be an22 increase. The further you get downstream, the more23 it's mitigated. It becomes a real challenge of how24 far downstream do you go. So we typically look at the25 permit boundary and any sensitive areas.

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1 In this case, we didn't have any2 sensitive areas that we were -- that we were3 impacting, and a sensitive area might be a receiving4 channel or a culvert, some sort of drainage channel5 that was designed for a certain amount.6 Q Okay. But I'm still not understanding how a7 decrease in the flow rate can result in a higher rate8 elsewhere --9 A Yeah.

10 Q -- unless you're -- my understanding is11 you've got these retention ponds.12 A Yes.13 Q And that is what is resulting in a decrease14 in the flow rate, at least in part. There may be15 other engineering?16 A No, but that's exactly it, yes.17 Q Okay. So if you're decreasing the flow rate,18 how can it -- I don't understand your response how it19 can actually increase the flow rate elsewhere.20 A Well, I'm not saying it does.21 Q As an independent -- and let's isolate that22 variable. Okay?23 A Yes.24 Q There are other things that contribute25 downstream to additional water flowing?



10 (Pages 267 to 270)

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1 A Yes.2 Q But as an isolated variable, how can a3 decreased flow rate at the permit boundary result in4 an increase elsewhere, assuming that everything works5 as you've engineered it?6 A Yes, there -- you know, there could just be7 a -- because you have a -- by discharging this8 additional volume, you have the water -- the rate of9 the flow is increased over time more so than it would

10 have been before. That doesn't have any direct11 relationship on the receiving channel.12 Q Are you -- and when you say it's increased13 over time, what you're talking about is the drainage14 of that retention pond?15 A Yes, because you've got more -- you've got16 your peak flow, and then it's going back down. So17 it's discharging at a reduced rate, but that reduced18 rate over time is still higher than it would have been19 in the natural condition. And that additional water20 may have some effect downstream, may, but it's21 difficult to tell. And then if you go down there, it22 may not have an effect there. Maybe it has an effect23 a mile downstream. The thing is the more you get24 downstream, the more the effect is mitigated and25 you --

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1 Q But I'm not talking about the ultimate volume2 of water.3 A Right.4 Q The volume, as I understand it, should remain5 constant. What you've done is stretched out a time6 period over which that volume has dissipated?7 A Why?8 Q That's the rate. So I still don't understand9 how a decrease in the rate -- granted that you're

10 going to use that lower rate to stretch out the time11 over which the same volume of water is dissipated --12 A Yes.13 Q -- how that's going to create perhaps a worse14 flooding condition further downstream because you've15 stretched the rate out.16 A Exactly.17 Q That's the issue that I'm trying to18 understand, and I don't get it.19 A Yeah, it's because -- it would be because20 sort of the peak of the storm in Mustang Creek is21 reaching there and before maybe without the pond it22 had passed on the peak discharge that would have come23 from this area would have passed on, and now it's --24 and now we've mitigated it. So there could be a25 combination of results there and that might cause what

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1 I would anticipate to be a very slight increase. But2 I actually -- in this case, I wouldn't anticipate an3 increase, but I know -- you know, and actually if you4 go upstream from there and along the road, then you5 wouldn't expect any kind of increase because that6 water is all downstream of there and would have flown7 out well before the water that we're discharging from8 the site would get there.9 JUDGE VICKERY: Okay. Thank you.

10 MR. DUNBAR: And, Your Honor, if I may,11 I actually want to develop that --12 JUDGE VICKERY: Sure.13 MR. DUNBAR: -- that very issue that you14 were just talking about some more.15 JUDGE VICKERY: Sure.16 MR. DUNBAR: I agree with you. I think17 that is the key.18 CROSS-EXAMINATION (CONTINUED)19 BY MR. DUNBAR:20 Q Mr. Murray, as the Judge's questions21 obviously indicated, it probably would be helpful to22 all of us to go through a little bit of basic23 hydrology to understand how flows combine with each24 other and timing and hydrographs and all of those25 things. I think it will directly answer the questions

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1 the Judge had. Okay?2 Mr. Murray, you know what a flow3 hydrograph is, don't you?4 A Yes.5 Q And what is a flow hydrograph?6 A It is a graph of the runoff versus time.7 Q Okay. Do you recognize what I've just drawn8 as a flow hydrograph as you've just defined it?9 A Yes.

10 Q Okay. And the scale on the left is -- I put11 it as Q in cfs, and you understand that would mean the12 stormwater runoff or flow rate of the stormwater13 runoff in terms of cubic feet per second. Correct?14 A Yes.15 Q Okay. And so at various points in time16 during and after a particular storm event certain17 amounts of stormwater are flowing past a given point18 at these various points in time. Correct?19 A Yes.20 Q So you can find any point along the time of21 the storm or after. And looking at a flow hydrograph,22 you can identify what the flow rate was at that point23 in time past a particular location that you're24 interested in. Correct?25 A Yes, that's correct.



11 (Pages 271 to 274)

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1 Q Okay. And assume with me, sir, that what I2 have drawn here we will represent as being the3 existing or natural conditions. Okay?4 A Okay.5 Q And in this flow hydrograph, what does this6 flow hydrograph -- what kind of information does it7 tell you with regards to natural drainage patterns?8 A It tells you the peak flow rate.9 Q Okay. And what I've drawn here, where is the

10 peak flow rate?11 A It would be that black dot that is the12 highest on the Y axis.13 Q Okay. Can I label that as Qp?14 A Yes.15 Q Is that what you're talking about --16 A Yes.17 Q -- that label Qp? So that is the peak flow18 rate that would be shown on this particular hydrograph19 here. Correct?20 A Yes.21 Q Okay. And what does the peak flow rate mean?22 A That is the highest flow rate that is23 produced as a result of that storm.24 Q Okay. And in the table in the application25 where you're comparing the peak flow rates for the

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1 25-year/24-hour event between existing conditions or2 prelandfill conditions and postlandfill conditions,3 you refer to the peak flow rate, this is -- this is4 the flow rate you're talking about, this one that's5 the highest part of the hydrograph. Correct?6 A That's correct.7 Q Okay. What else does this hydrograph tell us8 with regards to natural drainage patterns besides what9 the peak flow rate is?

10 A It tells you the volume of the storm in11 acre-feet.12 Q Okay. And how does it tell you that?13 A It's the area under the curve.14 Q Okay. So it's this -- it's all this area15 right here under the curve, under this line reflecting16 the hydrograph, that's the volume?17 A Yes, it is.18 Q Okay. What else does it tell you about19 natural drainage patterns, anything else?20 A Well, it tells you the discharge, as you21 already pointed out, at various intervals of time.22 Q Okay. So besides just the peak flow rate, it23 really tells you the flow rate at various periods of24 time?25 A Yes.

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1 Q Okay. Anything else?2 A Not that I can think of.3 Q Okay. Does it tell you the timing of flows4 throughout the course of the storm that's passed this5 particular point?6 A I think that's what we just said.7 Q Okay. So it's flow rates at various points8 in time. So flow rates in cfs at certain times.9 Right?

10 A Yes.11 Q Okay. Anything else regarding natural12 drainage patterns? Does did tell you about velocity?13 A No, it doesn't.14 Q Okay. Does it tell you about the direction15 that stormwater is going?16 A No.17 Q Okay. Okay. So you would agree with me --18 and everything that I've written so far on this piece19 of paper, you understand what I'm saying and you agree20 with what I've written?21 A Yes.22 Q Okay. And is it your understanding that if23 this is the existing or natural flow hydrograph that24 represents these parts of a natural drainage pattern,25 that when you develop a landfill, the rules require

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1 you not to significantly alter the natural drainage2 patterns. Correct?3 A I'm sorry. Could you ask that question4 again?5 Q Sure. The rules require that when you design6 your landfill you do not significantly alter natural7 drainage patterns?8 A Yes, but a hydrograph I wouldn't call a9 natural drainage pattern.

10 Q I understand, but the hydrograph identifies11 or provides you the information on these three12 components you said were components of the natural13 drainage patterns.14 A Did I -- I didn't think I said that.15 Q All right. Then let's step back a second.16 What constitutes -- how do you determine what is a17 natural drainage pattern? What does that mean?18 A It means that we're looking at the locations19 that stormwater is exiting the site and the conditions20 at which it's exiting the site.21 Q In terms of flow rate?22 A Yes, flow rate, depth of flow, velocity,23 width of flow, those kinds of -- those kinds of things24 we have to look at in ascertaining the natural25 drainage patterns.



12 (Pages 275 to 278)

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1 Q Okay. Is volume involved in natural drainage2 patterns? Is volume a component of natural drainage3 patterns?4 A Volume is a concern of natural drainage5 patterns, and that's why we used the detention basins.6 Q Okay. So in terms of natural drainage7 patterns, peak flow rate is an important consideration8 in evaluating national drainage patterns. Right?9 A Yes, it is.

10 Q Runoff volume in acre-feet is also an11 important parameter in evaluating natural drainage12 patterns. Correct?13 A Yes, we use it in the design of our detention14 basins, yes.15 Q I understand. And flow rates at certain16 times is a component of natural drainage patterns.17 Correct?18 A No, no.19 Q It's not?20 A No.21 Q Okay. So just peak flow rate and volume are22 the only ones associated with natural drainage23 patterns?24 A I would say primarily peak flow rate,25 location of the discharge points, the flooding

Page 276

1 conditions at those discharge points. And as I said,2 that includes the velocity, the width of the flow and3 the flood and the depth of flooding.4 Q Okay. So in terms of defining what "natural5 drainage patterns" means, you would agree with me that6 peak flow rate is an important component of that?7 A Yes, I think it's the primary -- it's a8 primary component because it is the controlling factor9 in so many of the concerns regarding natural drainage

10 patterns.11 Q Okay. Is there any other component that's12 important in establishing what the natural drainage13 patterns are?14 A Yes, locations of discharge points.15 Q Okay. Anything else?16 A The flooding conditions -- or the conditions17 at the receiving channel.18 Q And when you say "conditions at receiving19 channel," what do you -- what do you mean by that?20 A The conditions where we're discharging the21 water. In this case, typically at or near the permit22 boundary.23 Q Okay. So conditions at receiving channel at24 or near permit boundary?25 A Yes.

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1 Q How close is "near permit boundary"? Are you2 talking downstream of permit boundary or upstream of3 permit boundary when you say "near"?4 A Generally upstream.5 Q Okay. So at or upstream of permit boundary.6 Correct?7 A Yes.8 Q Okay. Anything else?9 A No.

10 Q Okay. And when you say "the conditions at11 the receiving channel at or upstream of the permit12 boundary," what do you mean by "the conditions"? You13 mean like the shape of the channel or the size, or14 what do you mean by "conditions"?15 A The conditions, the velocity in the receiving16 channel, the depth of the flood in the receiving17 channel and the width of the flood in the receiving18 channel.19 Q Okay. Anything else that is associated with20 establishing what the natural drainage patterns are21 other than what I've written right here?22 A Not that I can think of.23 Q Okay. And I don't see runoff volume. Is24 runoff volume important to establish natural drainage25 patterns?

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1 A No.2 Q Okay. Is runoff volume important in3 establishing the peak flow rate?4 A Yes.5 Q Well, then if it was important establishing6 the peak flow rate, you said here it's not important7 in establishing what natural drainage patterns are.8 A Well, we were talking about the primary9 items, and the runoff volume goes to calculating the

10 peak flow rate.11 Q All right. So --12 A But if we're going to get into runoff volume,13 then we get into everything else that goes into14 establishing the peak flow rate.15 Q Yeah, I'd like to do that. That's okay. I16 want everything. I want to know what we're talking17 about here. So I need to include runoff volume maybe18 up here with peak flow rate?19 A No. Runoff volume is -- you have to know the20 runoff volume and the shape of the storm in order to21 determine the peak flow rate.22 Q Okay. So I have to know the runoff volume23 and you said the shape of the what?24 A Runoff volume you have to know to determine25 the peak flow rate as you've shown on that -- as



13 (Pages 279 to 282)

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1 you've shown on your hydrograph there.2 Q Okay. And you said the shape of something.3 I missed it. I'm sorry.4 A I'm sorry. I forget.5 Q Okay. So in this flow hydrograph I have in6 this exhibit here, once you know the runoff volume and7 you establish the peak flow rate, then runoff volume8 isn't important anymore. Right?9 A No, it's important in designing the detention

10 basins.11 Q Okay. But other than designing the detention12 basins, it's not important in establishing and13 evaluating whether natural drainage patterns have been14 altered at the permit boundary other than as it15 relates to peak flow rate?16 A As it relates to peak flow rate and the17 conditions at the receiving channel.18 Q Right. It doesn't make any difference --19 right -- what the runoff volume is?20 A No, I wouldn't say that.21 Q Okay. Can you assume with me what I've drawn22 here is a flow hydrograph?23 A Yes.24 Q That's based upon a certain volume of storm25 water that's part of the curve. Correct?

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1 A That's a flow hydrograph based on -- based on2 the preparation of a hydrograph.3 Q And it's based upon a certain volume of4 water. Correct?5 A Well, it's based on many things. Volume of6 water is what you can calculate as the area under that7 graph.8 Q Okay. And I can draw another flow hydrograph9 that has the exact same peak flow rate as the first

10 one I drew that has a significantly more volume of11 water associated with it than the first hydrograph.12 Correct?13 A Yes, you can.14 Q Okay. And I could -- not to belabor the15 point, but I could go and draw hydrographs that have,16 again, 10, 20, 50, 100, 200, 300 percent more volume17 of water and still come up with the same peak flow18 rate. Correct?19 A Yes.20 Q Okay. And does it make any difference how21 much volume of water I'm dealing with when we send all22 this water downstream? Does it make any difference in23 terms of causing flooding downstream?24 A In terms of causing flooding downstream, in25 the receiving channel, I don't know. This is a

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1 hypothetical. What kind of conditions are you talking2 downstream?3 Q The conditions we have at the site, Discharge4 Point A going to the southeast towards Mustang Creek5 and into Mustang Creek.6 A Yes, but we don't have conditions like you7 show there. You show a -- you show a hydrograph that8 is well, significantly larger in scope than it would9 have been.

10 Q Well, okay, and maybe I'm confusing you, and11 I apologize. I'm actually trying to clarify for the12 Judge and may not be doing a good job.13 Let me try one more time, and I think I14 might get it. Here is your hydrograph for existing15 conditions. Correct? Let's assume this hydrograph is16 existing conditions and here is your peak flow.17 Right? Okay?18 A Okay.19 Q Okay. And then when you develop the site20 with the landfill and if you had no detention21 whatsoever, what would you expect to happen off of22 that same piece of land that produced this without the23 landfill? What would you expect this to look like24 when you put a landfill on it with no detention?25 A Well, you would have -- well, it would depend

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1 on how much acreage was going through the site and2 everything else.3 Q Okay. Let's assume we're talking about the4 exact same amount of acreage.5 A The exact same amount of acreage, then you6 would probably end up with an increase in the peak7 flow.8 Q Okay. Why?9 A Because the water would be -- if you didn't

10 have any detention, in this very hypothetical you11 would probably have the water leaving the site at a --12 at a higher peak flow.13 Q Something higher up here?14 A Yes.15 Q Okay. Would it leave the site at the same16 time as it used to, that peak flow, just higher?17 A It could leave it at the same time. It could18 leave it earlier or later. It's hard -- it depends on19 the characteristics of the drainage area.20 Q Okay. Let's assume it curves slightly21 earlier and it might look something like that. Right?22 Assume we have the same volume of water, same drainage23 area, everything. Right? This proposed developed24 hydrograph in the landfill area would produce a higher25 peak flow you say -- right -- if you didn't have



14 (Pages 283 to 286)

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1 detention. Correct?2 A More than likely.3 Q Okay. And then if this were significantly4 higher than that peak flow, do you agree that would be5 in violation of the TCEQ rules regarding no6 significant alteration of natural drainage patterns if7 the peak flow were significantly higher?8 A Well, it would depend on the actual -- the9 receiving channel.

10 Q Okay. And if the receiving channel was11 flooding without that peak flow rate, would it be12 flooding more with that peak flow rate?13 A Possibly, possibly not.14 Q Okay. Why would it possibly not be flooding15 more with that peak flow rate if it was flooding16 without that peak flow rate?17 A Well, it may be that if the receiving18 channel -- I guess it's just this hypothetical that I19 don't know enough about. Is this actually at a20 discharge point?21 Q Yes, at the permit boundary.22 A Okay. Are there any other dischargers that23 are coming together at this point?24 Q Let's assume -- let's make it simple. This25 is Discharge Point A at this site.

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1 A Okay.2 Q Does that help?3 A Yes.4 Q Okay.5 A Then in that case, it would increase the6 velocity, the depth of flow in the channel and more7 than likely the width of the flood -- the flooded area8 in that receiving channel at Discharge Point A if we9 had a higher peak flow rate there.

10 Q Okay. And what about when this higher peak11 flow rate got down to Mustang Creek 3,000 feet away,12 could it cause additional flooding there if you didn't13 have detention?14 A Maybe, maybe not.15 Q Okay. You don't know -- you don't know?16 A No.17 Q Okay.18 CLARIFYING EXAMINATION19 BY JUDGE VICKERY:20 Q Let me break in. The reason why you say you21 don't know -- and I think it's the very answer to the22 question I was asking -- is because you don't know23 what other channels are feeding in downstream, you24 don't know what the weather conditions are, you don't25 know if there's more rain upstream or downstream. Is

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1 that -- there are too many other variables for you to2 say what would happen downstream as a result of this.3 Is that --4 A You know, it could -- just with what he's5 given me, you know, we don't -- we don't know enough6 about what's happening to look at it. You could7 actually go and analyze Mustang Creek and see if8 there's any impact. The issue starts to become where9 do you stop.

10 Q It's a matter of variables?11 A It's a matter of variables. It's how do you12 stop. Any time you develop anything, and that can be13 taking a natural field with natural grasses and14 cutting a road across it, you've increased the volume15 coming off of that field. So anything that man does16 increases the volume off of it. And so there is no17 way to not increase the volume as a result of18 development of any sort. So it becomes a matter of19 controlling the discharge.20 Q And that is exactly what I want to ask you21 about before Mr. Dunbar continues, if he needs to22 after I ask this question. And if we look at23 Page 250, Discharge Study Point A, if we just look at24 it, the existing 25-year/24-hour peak flow rate at the25 permit boundary, 195 with a -- and my understanding is

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1 total volume of water over whatever a given period of2 time is.3 A Yes.4 Q 62?5 A 62, yes.6 Q Okay. You move over to postdevelopment,7 exact same point. It's 178, that's your flow rate.8 A Uh-huh.9 Q It's reduction in the flow rate?

10 A Yes.11 Q However, as I understand it, total volume of12 water discharge is actually 90 as opposed to 62?13 A That's correct.14 Q And that's strictly as a result of the15 development. Even though you have, as I understand16 it, the exact same amount of water coming into any17 given area, which is going into this discharge point.18 Is that correct? I'm trying to understand the19 relationship between the 62 in volume and the 90 in20 volume, and I think you just answered my question.21 You don't have any other channels that are flowing22 into Point A postdevelopment?23 A No.24 Q It's just that the volume increases when25 you -- when you make alterations to the surface?



15 (Pages 287 to 290)

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1 A That's correct, right.2 JUDGE VICKERY: All right. I'm3 satisfied.4 MR. DUNBAR: Okay. Let me ask one more5 question, Judge, and see if you're still satisfied.6 CROSS-EXAMINATION (CONTINUED)7 BY MR. DUNBAR:8 Q Have you increased the drainage area that9 goes to Discharge Point A as a result of your proposed

10 landfill site? I think that's the Judge's question.11 Or is the drainage area that's feeding this the same?12 A I don't know.13 Q You don't know?14 A It's a matter of keeping the drainage areas.15 The drainage areas may revise. I mean, the existing16 ground out there right now is a corn field, and we're17 going to put a landfill on top of it. The landfill is18 not going to be in the same shape as the corn field.19 Therefore, drainage areas are going to change.20 See, the drainage area within the site21 is exactly the same. At different discharge points,22 sometimes there may be more drainage area to it,23 sometimes there's less drainage area to it, but in the24 end it is all discharging from the site at the same25 drainage areas. We're not adding more area to the

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1 site.2 Q Okay. So one of the explanations as to why3 you may be getting more runoff volume under your4 landfill condition rather than your natural condition5 is you're actually diverting and sending more6 stormwater runoff to that location from areas that7 naturally don't drain there. Right?8 A Well, there is going to be runoff. If, in9 fact, there is more drainage area going there, then

10 there will be runoff and, once again, we mitigate that11 with the detention pond in looking at that volume.12 And additionally, you'll see "Well, okay, we have13 runoff that before may not have been going to that14 point, but that may be mitigated by runoff at another15 point adjacent to there. In this case, the sheet flow16 at little -- at little "a" which is along that17 southern boundary. Well, if you look at that, the18 discharge in stormwater volume has decreased from 3019 to 4.20 MR. MOORE: Judge, if I may, if21 Mr. Dunbar is going to question the witness and not22 use the chart, can I ask that he take a seat and not23 hover over the witness, please?24 JUDGE VICKERY: Are you done with the25 chart, Mr. Dunbar?

Page 289

1 MR. DUNBAR: Probably not, but I'll sit2 until I use it again.3 JUDGE VICKERY: Okay. I loath to ask4 another question, but I will.5 (Laughter)6 JUDGE VICKERY: There is another7 variable in there, I would assume, which is the actual8 amount of water that the ground itself can absorb.9 That gets altered with any landfill. Is that correct?

10 A Yes, of course, yes.11 JUDGE VICKERY: And that also12 contributes to the volume?13 A Exactly. You've got --14 JUDGE VICKERY: All right.15 A Right now you've got a flat corn field out16 there. Well, now we've got -- we've got the slopes of17 the landfill, even the topsoil, as flat as that is, is18 generally going to be steeper. So that is going to19 cause more water to run off. The fact that now we20 have a very fairly impermeable final cover on the21 landfill is going to result in higher runoff. Those22 are things that are going to result in additional23 volume, including if -- you know, if you have more24 area going to that -- to that discharge point than25 before, all those are factors that would increase the

Page 290

1 amount of runoff to the landfill, and that's why we2 put in detention basins to control the runoff from the3 site.4 JUDGE VICKERY: Thank you.5 Q (By Mr. Dunbar) Can you control the increase6 in runoff volume from the site so you don't have7 increased runoff volume from the site?8 A From the entire site?9 Q From any discharge point.

10 A You could control it possibly individually,11 but as a result of landfill development, you are going12 to have increased runoff.13 Q Can you mitigate that increased volume of14 runoff so it doesn't leave the site?15 A No.16 Q You can't use a retention pond to capture the17 increased amount of runoff and keep it on site?18 A Retention ponds really don't work in Texas.19 Q Okay. Why not?20 A Once the water goes in there, you might as21 well have dirt in the pond because you've got -- once22 you have water that goes into that pond, that volume23 is no longer useful. And, in fact, "retention ponds"24 are a term that, especially in Texas, people tend to25 get confused with "detention ponds."



16 (Pages 291 to 294)

Page 291

1 Q But you know the difference between a2 detention pond and a retention pond, don't you?3 A Yes.4 Q Okay. And isn't it true --5 JUDGE VICKERY: Mr. Dunbar, would you6 please take a seat?7 MR. DUNBAR: Your Honor, I was going to8 hand him a document --9 JUDGE VICKERY: Okay.

10 MR. DUNBAR: -- because I think this11 might clear it up.12 JUDGE VICKERY: Has counsel had an13 opportunity to look at it?14 MR. DUNBAR: I'm sorry.15 MR. MOORE: No, we have not, Your Honor.16 Judge, this looks to be a 17-page document. It might17 be a good time for a break to have Mr. Murray take a18 look at the document if Mr. Dunbar expects to question19 him on it.20 JUDGE VICKERY: Let's take a break, and21 we'll come back at 25 till.22 Off the record.23 (Recess: 10:23 a.m. to 10:35 a.m.)24 JUDGE VICKERY: Okay. Let's go back on25 the record.

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1 Q (By Mr. Dunbar) Mr. Murray, are you familiar2 with TCEQ Regulatory Guidance RG-417 dated June 20063 titled Guidelines for Preparing a Surface Water4 Drainage Plan for a Municipal Solid Waste Facility?5 A Yes, I was consulted -- the TCEQ consulted6 with me when they were originally preparing this7 guidance document, and this particular version of the8 guidance document, as you pointed out, came out in9 June 2006, well after this application was declared

10 technically complete.11 Q Okay. Was this guidance document suitable12 for permit applications that were administratively13 complete before March 27, 2006?14 A That's what it says.15 Q Okay. And was this permit application16 administratively complete before March 27, 2006?17 A It was administratively complete and18 technically complete in February of 2006.19 Q Okay. Did you refer to these guidelines in20 your prefiled testimony?21 A The June 2006 --22 Q Yes.23 A -- guidelines? I would have to check. I24 don't recall right now.25 Q If you'd turn to Page 51 of your prefiled

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1 testimony?2 A Okay.3 Q Line 27 --4 A Yes.5 Q -- does it say "According to TCEQ's6 Guidelines for Preparing a Surface Water Drainage Plan7 for a Municipal Solid Waste Facility RG-4178 (June 2006)"?9 A Yes.

10 Q Okay. So you're familiar with these11 guidelines and referred to these guidelines in your12 prefiled testimony for this hearing today on this13 permit amendment application?14 A Yes. Of course, they didn't exist in15 June 2006. When I prepared the document, it was16 actually the 2004 version of these guidelines.17 Q Okay. Do these guidelines provide some18 guidance from the TCEQ staff with regards to how to19 prepare a drainage plan for a municipal solid waste20 landfill?21 A Yes, they do. That's why we followed it.22 Q And you followed these guidelines?23 A Yes.24 Q Okay. You're sure you followed these25 guidelines?

Page 294

1 A Yes.2 Q Okay.3 A Well, I'm sorry, not the June 2006. I4 couldn't. They didn't exist. But the 20045 guidelines, yes.6 Q Okay. And are you -- but you're familiar7 with the June 2006 guidelines?8 A Yes.9 Q Did you follow those in preparing this

10 application?11 A Well, there are changes to the two, and so,12 no, not completely --13 Q Okay.14 A -- because I could not follow them because15 they did not exist.16 Q All right. If you'd turn to the third page17 of these guidelines under Paragraph 2 that says18 Maintaining Natural Drainage Patterns, do you see19 that?20 A On the third page?21 JUDGE VICKERY: Mr. Dunbar, do you have22 a spare copy of that document? Should we have that23 somewhere?24 MR. DUNBAR: No, I don't, Judge.25 JUDGE VICKERY: Okay. That's fine.



17 (Pages 295 to 298)

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1 MR. DUNBAR: I will get you one.2 JUDGE VICKERY: No, no, that's okay.3 It's just if you're going -- if you want him to speak4 specifically about some language, have him quote5 whatever language it is or -- I changed my mind. If6 you could get me copy of that, I'd appreciate it.7 I've changed my mind.8 MR. DUNBAR: Okay.9 JUDGE VICKERY: Thank you. Is this the

10 2006 or the 2004 guidelines that you're questioning11 him on?12 MR. DUNBAR: These are the 200613 guidelines.14 JUDGE VICKERY: Okay.15 MR. DUNBAR: Judge, could we take a16 break to get a copy for you? I don't have an extra17 copy besides the one I have.18 JUDGE VICKERY: Just charge on ahead. I19 mean, I can go back over it. I just need something to20 look at --21 MR. DUNBAR: I will get it for you.22 JUDGE VICKERY: -- subject to objection23 by counsel.24 Q (By Mr. Dunbar) On the third page of that25 document -- do you have that document in front of you?

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1 A Yes.2 Q Okay. The third page that has No. 3 in the3 lower right-hand corner, do you have that?4 A Yes.5 Q And on the top it says 2 -- No. 2,6 Maintaining Natural Drainage Patterns?7 A Yes.8 Q Okay. And under 2.1 on that page, it says9 How to Evaluate Alteration in Natural Drainage

10 Patterns. Correct?11 A Yes.12 Q Okay. Then it refers to Section 330.56(f)(2)13 and (4) of the TCEQ rules. Correct?14 A Yes.15 Q And it talks about, according to those rules,16 "Natural drainage patterns must not be significantly17 altered as a result of the proposed development of the18 facility." Correct?19 A That's what it says.20 Q Okay. And your design, in your opinion,21 complies with those -- those rules?22 A Yes.23 Q All right. And then it says "You can24 evaluate the significance of changes to drainage25 patterns based on the impacts of changes on the

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1 following." It says "receiving streams or channels,2 downstream flooding potential, adjacent and downstream3 properties and downstream water rights and uses."4 Correct?5 A Yes.6 Q Okay. And I think you testified before you7 didn't look at the downstream flooding potential in8 terms of discharges off the site at Discharge Point A9 in Mustang Creek. Correct?

10 A We did. It gets into your definition of11 "downstream," but we know that just downstream of the12 property that we have not increased the flooding13 conditions at all.14 Q I understand, but you haven't evaluated them15 downstream in Mustang Creek. Correct? You said that16 before.17 A We have not evaluated downstream in Mustang18 Creek, no, we have not.19 Q All right.20 A But that does not mean we have not evaluated21 downstream of the discharge point.22 Q Okay. The next paragraph says "There is no23 clear cut number or percent of change that can be set24 to indicate a significant change." Correct?25 A That's correct.

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1 Q You agree with that?2 A Yes.3 Q Okay. Then it says "However, you should4 demonstrate that drainage patterns will not be5 significantly altered because of the effect of site6 development on" -- and it lists three items. Correct?7 A Yes.8 Q Item No. 1 is peak flows?9 A That's correct.

10 Q Is that the same thing as peak flow rates we11 had shown before?12 A Yes.13 Q Okay. The second item is volumes. Correct?14 A Correct.15 Q Okay. And the third item is velocities.16 Correct?17 A Yes.18 Q And then this document goes on to discuss19 those three components. Correct?20 A Yes.21 Q Okay. And under 2.1.1, which is the very22 next section under Peak Flows, does it not say on the23 last -- the second sentence, "In order to properly24 evaluate the effects of changes and the magnitude of25 peak flows, you should consider the timing of peak



18 (Pages 299 to 302)

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1 flows from the site and their contribution to peak2 flow rates in receiving streams or channels."3 Correct?4 A Correct.5 Q Did you consider the timing of your peak6 flows from the site and their contribution to peak7 flows in the receiving streams and channels --8 A Yes.9 Q -- for Discharge Point A?

10 A Yes, we did.11 Q Okay. And how did you determine and consider12 the timing of the peak flows from Discharge Point A to13 their contribution to peak flow rates in the receiving14 stream or channel if you didn't look off site?15 A Peak -- at Discharge Point A, we only had --16 we had the discharge from the detention pond and the17 discharge from some of the on-site area that was not18 going to the detention ponds. And, in fact, we -- we19 modeled that and computed the flow rate and volume at20 that point.21 Q Just at the permit boundary?22 A That is correct.23 Q But not in the receiving stream or channel24 downstream?25 A And the receiving stream and channel at that

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1 point gets no additional water; therefore, we've2 analyzed the receiving -- the flooding potential in3 the receiving stream and channel.4 Q But not in Mustang Creek?5 A That's correct.6 Q All right. In the third paragraph it talks7 about what's considered significant. Correct?8 A Yes, it does.9 Q And it says "A significant change would be a

10 large percent for the Brazos River, but a small11 percent for a 20-foot-wide creek that has intermittent12 flow"?13 A Possibly, yes. That is what it says, yes.14 Q Do you agree with that statement?15 A Yes.16 Q All right. Do you know what the width of17 Mustang Creek is approximately where FM 1660 roadside18 ditch joins Mustang Creek approximately? Is it19 20 feet, 50 feet, 100 feet, 200 feet? Do you know?20 A It's probably several hundred feet wide.21 Q Okay.22 A The floodway there I would think is several23 hundred feet wide. I don't know exactly how wide it24 is. I haven't looked at it.25 By the way, that water is diverted under

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1 the highway well before it gets to Mustang Creek.2 Q It is?3 A Yes.4 Q How do you know?5 A Because there's a culvert there.6 Q Where is it in your application that shows7 that?8 A It's not. It's well downstream of our9 discharge point.

10 Q Okay.11 A But I did look at it in preparing this entire12 document.13 Q You did?14 A Yes.15 Q And does that culvert have enough capacity to16 handle all the water you're sending it?17 A Yes, because we're not increasing the amount18 of water that's going to that culvert in the natural19 conditions, so, yes.20 Q Does the culvert in the natural condition21 have enough capacity to handle the natural flow?22 A I don't know.23 Q Well, if you don't know -- if it can't handle24 the natural flow, then you don't know if it can handle25 the proposed flow which has approximately the same

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1 peak flow. Right?2 A Yes, but there's no requirement --3 Q Okay. Thank you.4 MR. MOORE: Well, let the witness finish5 his answer.6 JUDGE VICKERY: I think for the7 development of testimony, I would like him to finish8 his testimony.9 MR. DUNBAR: That's fine, Your Honor.

10 Sorry.11 A There is no requirement that we improve12 downstream drainage conditions, or in this case a13 downstream culvert that's 1,500 to 2,000 feet14 downstream, and we are not worsening the drainage15 there.16 Q (By Mr. Dunbar) But if it doesn't have the17 capacity to handle the runoff from Discharge Point A,18 that runoff will go into Mustang Creek, won't it?19 A I don't know what is going -- the runoff will20 get to Mustang Creek, just not upstream at the point21 you were discussing.22 Q But it will get there upstream of 1660 where23 it crosses Mustang Creek?24 A Oh, I don't know. We'd have to look at the25 topography and the culvert.



19 (Pages 303 to 306)

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1 Q But you haven't done that in this2 application, have you?3 A No, I had no particular reason to do that.4 Q All right. Do you know what the width of the5 creek and the unnamed tributary is in the vicinity of6 the landfill?7 A In the vicinity of the landfill?8 Q Yeah.9 A I can look that up for you.

10 Q Sure. If you would, please.11 A Would you like the developed or the natural12 conditions?13 Q I'm just asking for the width of the creek of14 the unnamed tributary to the north. Does it change15 between pre --16 A No, but there might be some slight variations17 in the top width.18 Q No, I'm talking about just the creek itself,19 the channel, not the floodplain.20 A Oh, I'm sorry.21 Q Yeah.22 A Well, the first cross-section I have,23 the width is about 17 feet. The next one is24 about 80 feet. The next one is 19 feet.25 Q Okay. That's fine.

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1 A The next one is --2 Q All right. So it's somewhere between 153 and 100 feet?4 A Yes.5 Q All right.6 A It meanders.7 Q So according to these guidelines, a8 significant change in peak flow could be associated9 with a small percent for a 20-foot wide creek that has

10 intermittent flow. Would the unnamed tributary kind11 of fall in that general category versus something12 closer to the Brazos River that's referred to in this13 guideline?14 A That's a very sort of vague generalization,15 but, yes, I would say it could.16 Q Okay.17 A It doesn't necessarily mean that a 1 percent18 deviation in this channel is significant.19 Q Okay. If you turn to the next page,20 Paragraph 2.1.2 entitled Volumes, and doesn't it say21 "In preparing your drainage plan, you should also22 consider alterations to drainage patterns caused by23 increased or decreased volumes of water discharged at24 various points resulting from the designed storm along25 with the potential impacts resulting from such

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1 changes"?2 A Yes.3 Q Do you agree with that?4 A Yes.5 Q You agree that should be done?6 A And we did.7 Q Okay. And how did you do that?8 A We put in three different detention basins.9 Q Okay. And the detention basins took care of

10 any increase in runoff volumes?11 A It mitigated the effects of the increase in12 runoff volumes.13 Q Okay. Did it reduce the amount of runoff14 volume coming off that site when it went through a15 detention pond?16 A No, it did not.17 Q Okay. So how did it mitigate it?18 A It mitigated it by controlling or metering19 out the flow in a manner to not cause significant20 issues to the downstream receiving channel.21 MR. DUNBAR: Okay. If I may, Your22 Honor?23 JUDGE VICKERY: Yes.24 Q (By Mr. Dunbar) If I understand what you25 just said is if you have this runoff hydrograph from

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1 your landfill coming towards the permit boundary that2 has more volume under the developed conditions than it3 has in the existing conditions, you ran it through a4 detention pond to mitigate that impact?5 A Yes, that's correct.6 Q All right. And when you run it through a7 detention pond, if you ran this hydrograph through the8 detention pond, it has a tendency to lower the peak9 flow -- correct -- that's one thing it does?

10 A That is one -- that is one of the main11 reasons we put the detention pond in there, yes.12 Q Okay. And it also has the tendency to shift13 the time of the peak flow later in time, does it not?14 A Yes.15 Q Okay. And if you were dealing with the same16 amount of volume of water between your existing and17 developed conditions and you ran your developed18 conditions flows through a detention pond, isn't it19 the objective and the goal to try to get close to the20 existing hydrograph?21 A No, I don't think so at all.22 Q Okay. Why wouldn't you want to try to do23 that?24 A I think that's an unrealistic expectation.25 Q Okay. So what is your goal, just to get the



20 (Pages 307 to 310)

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1 peak flow down?2 A My goal is to mitigate it to where we control3 the runoff at such a point that the downstream4 receiving channel is not adversely impacted.5 Q Okay. So if you have a detention pond6 outflow that did that, if the developed runoff came7 into your detention pond and this was the outflow from8 your pond, could that occur? Could you design a pond9 to do that?

10 A You could design a pond that might have that11 discharge characteristic, yes. I don't know that I12 could set out to design a pond that had a discharge13 curve that looked like that but --14 Q Well, I guess I'm trying to understand. What15 are you trying to accomplish in your detention pond16 design? What are you trying to do?17 A I'm sorry, but I thought I just said that18 we're trying to control the discharge at the point to19 where -- to where we are not adversely affecting the20 downstream receiving water body. We are maintaining21 the peak flows at or near or below the natural22 condition. We are not significantly impacting or23 specifically increasing the velocities, the depth of24 flows, the width of the flooded area in the receiving25 channels.

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1 Q But if you have a detention pond that you2 design that has this hydrograph under existing3 conditions and then you have a development that's4 going to have, you know, more -- a higher peak flow5 before it comes into the pond and you have a lot more6 volume of water because you diverted areas to this7 pond that naturally didn't go into that direction, and8 you get 50 percent, 100 percent, 200 percent more9 water coming in that area, and you can go through the

10 detention pond and still get the same peak flow but11 have a hydrograph shape that would look like that12 coming out of your pond. Right?13 A In that hypothetical that you just prepared,14 yes, you could possibly have a hydrograph that looked15 like that, yes.16 Q Okay.17 A But I don't know the specifics of this18 theoretical discharge point you're talking about, but19 if the peak flow rate is maintained at -- and20 everything else is the same on the receiving channel,21 then that receiving channel, barring any other water22 going into that receiving channel or something that23 would otherwise affect it, it is not going to be24 affected by the fact that there is water in it for a25 longer period of time. It's not a matter of how long

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1 the water is in the channel. It's a matter of what2 it's doing when it's there, how deep it's flooding,3 how fast it's going, you know, how wide it's flooding.4 If all those things are the same or less --5 Q But what if in your receiving channel -- in6 this case let's say Mustang Creek -- you do have more7 water contributing to that location besides what's8 coming off Discharge Point A. Right?9 A The Mustang Creek is the receiving channel

10 for some of our discharge points. The discharge --11 water from Discharge Point A, the receiving channel,12 is actually the roadside ditch on FM 1660. Now, that13 roadside ditch does go almost over a half mile, cross14 under the culvert, cross under the highway and then15 through another creek, finally make its way to Mustang16 Creek, but the receiving channel is the roadside17 ditch, and we have analyzed that.18 Q At the permit boundary?19 A Yes, sir, that's the worst-case condition.20 Q Okay. But if you have these additional peak21 flows -- flow rates occurring and coming out of your22 detention pond at various points in time that occur23 when under natural conditions you weren't getting flow24 from your discharge point at those points in time,25 could this additional flow rate at these later points

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1 in time cause flooding downstream somewhere?2 A Somewhere?3 Q Yes.4 A Somewhere; I guess they could somewhere.5 Q Okay. And in this particular permit6 application, if this were to happen, could this cause7 potential flooding problems in Mustang Creek?8 A It's very unlikely, but given the hydrograph9 you have drawn there in this very hypothetical

10 situation, it would be something you would -- you11 know, I don't know. I don't know whether it would or12 not.13 JUDGE VICKERY: I have to break in here14 because I don't know whether or not what you're15 drawing is going to be offered, but I want to make16 sure that the record is clear that what you've drawn17 up there is an alteration which resulted in a18 significant additional volume of water with the exact19 same flow rate, which is something that the witness20 has stated he did not design in this case. And I say21 that because I want to make sure that his testimony is22 clear on the record. It needs to be clarified --23 MR. DUNBAR: Okay.24 JUDGE VICKERY: -- because it's got the25 same flow rate.



21 (Pages 311 to 314)

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1 MR. DUNBAR: Okay.2 JUDGE VICKERY: I mean, that's not what3 he designed.4 MR. DUNBAR: All right.5 Q (By Mr. Dunbar) If you'll look at the table6 that we were referring to before and it had your7 comparison of peak flow rates and volumes between pre8 and post conditions?9 A Yes.

10 Q Can you turn to that? And at Discharge11 Point A, what is the peak flow rate for existing12 conditions?13 A 195 cfs.14 Q Okay. And what's the peak flow rate for15 proposed conditions at Discharge Point A?16 A 178 cfs.17 Q So a reduction in the peak discharge is about18 10 percent. Right?19 A Yes.20 Q Okay. And what's the runoff volume for21 existing conditions at Discharge Point A?22 A 62 acre-feet.23 Q Okay. And what's the runoff volume in the24 postdevelopment conditions at Discharge Point A?25 A It's 90 acre-feet.

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1 Q Okay. About a 50 percent increase in runoff2 volume. Correct?3 A It is a -- well, it is a 28 acre-foot4 increase in runoff volume, yes.5 Q All right. Does this graph I've shown6 generally depict those kinds of numbers?7 A No, not at all.8 Q Okay. Why not?9 A Because the developed graph you have drawn is

10 drawn many times too big.11 Q Okay. About how many times more?12 A It looks to be three times more.13 Q Okay. All right. If you look at Discharge14 Point B, what is the peak discharge leaving Discharge15 Point B? Before you answer that question, Discharge16 Point B is going to the north?17 A Correct.18 Q Okay. Also FM 1660 roadside ditch is towards19 the north?20 A Yes, it is.21 Q And that's heading towards the unnamed22 tributary that runs through the property on the north?23 A And the San Gabriel River, yes.24 Q Okay. And at Discharge Point B, what is the25 peak discharge leaving the site under existing

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1 conditions?2 A It is 114 cfs.3 Q And how about proposed conditions?4 A 106 cfs.5 Q A difference of about 7 percent?6 A Possibly, yes.7 Q All right. What about the runoff volume,8 what's the existing condition runoff volume leaving9 Discharge Point B?

10 A It's 29 acre-feet.11 Q And what about for proposed conditions?12 A 81 acre-feet.13 Q That's an increase of about two and a half14 times?15 A Yes.16 Q Okay. Does this exhibit more closely reflect17 what's happened at Discharge Point B as you've18 designed the landfill for this particular permit19 application?20 A It would be more closely than it was for21 Discharge Point A, that's for sure, but otherwise22 it's -- it's still not accurate. I mean, the graphs23 are shown to where the peak flow rates are the same24 and, you know, we don't actually have the hydrographs.25 Q Why don't you have the hydrographs?

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1 A I did not need them.2 Q Okay. Could you have printed them out when3 you ran your HEC-1 model?4 A Oh, of course. The HEC-1 model, which is the5 hydrologic model that we use and is used all over the6 United States routinely, produces hydrographs in7 calculating these stormwater flows. In fact in8 many -- in some of these models we had, we computed a9 dozen or more hydrographs. We don't initially print

10 them out because the HEC program then gives us all the11 detailed information that we need to take from it, the12 peak flow rates, the volumes and whatnot.13 Q Okay. And at Discharge Point B does the peak14 flow for developed conditions occur later in time than15 the peak flow for existing conditions?16 A I don't know. I could look.17 Q Please. And when you do, also look for18 Discharge Point A as well.19 A Okay. For Discharge Point B, the peak flow20 rate occurs at 13.42 hours.21 Q That's for existing conditions?22 A That's in the natural conditions.23 Q Okay. And you found that on what page of the24 application?25 A 1186.



22 (Pages 315 to 318)

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1 Q All right.2 A Okay. And the peak flow rate on Discharge3 Point B in the developed condition is at 14.08.4 Q Is that in hours?5 A Yes.6 Q And the 13.42 is in hours?7 A Yes.8 Q So it's approximately about a half hour9 later?

10 A Yes.11 Q All right. And you found that on page what,12 1301?13 A 1303.14 Q Sorry. And that was after it went through15 the detention pond?16 A Yes.17 Q Okay. And if you could tell us the same18 information for Discharge Point A, please?19 A The time of the peak flow rate is 13.92 for20 the natural condition, 13.83 for the developed21 condition.22 Q And that's after it went through the23 detention pond?24 A Yes.25 Q And what page is that?

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1 A The developed condition is 1287. The natural2 condition is 1176.3 Q Okay. And just one more piece of4 information. What's the drainage area draining to5 Discharge Points A and B for the natural condition6 versus the developed condition?7 A The cumulative area for Discharge Point A in8 the natural condition is .25 square miles. For the9 developed condition, it's .28 square miles.

10 Q Do you know how many acres that is?11 A Not off the top of my head.12 Q If I give you a calculator, can you calculate13 it for us?14 A Would you like me to calculate it?15 Q Please.16 A Did you want me -- what did you want me to17 calculate again?18 Q Just convert the square miles into acres.19 (Brief pause)20 JUDGE VICKERY: While Mr. Murray is21 making those calculations, are there going to be any22 objections to this document coming in? And I think23 what we can do is simply take administrative notice of24 it, subject to objections by counsel.25 JUDGE CARD: This is the June 2006.

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1 JUDGE VICKERY: Yeah, the June 2006.2 MR. MOORE: No, with Mr. Murray's3 testimony regarding the document, his use or lack4 thereof of it, it's a TCEQ guidance document. We have5 no objection.6 JUDGE VICKERY: Right. RG-417, with the7 understanding that although it was mentioned in his8 testimony, the application was prepared9 administratively complete, technically complete prior

10 to the issuance of this document.11 MR. MOORE: That's correct, Your Honor.12 JUDGE VICKERY: Any objections?13 (No response)14 JUDGE VICKERY: Okay. We'll take15 administrative notice of RG-417 of June 2006.16 JUDGE CARD: And thank you for the17 copies.18 JUDGE VICKERY: Thank you.19 A Okay. I've finished the calculations.20 Q (By Mr. Dunbar) All right. And what's the21 drainage area for Discharge Point A for existing or22 natural conditions in acres?23 A It is 160 acres.24 Q Okay. And what about for proposed25 conditions?

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1 A 179 acres.2 Q All right.3 JUDGE CARD: Before you go on, could you4 give us the page numbers where you got the .25 square5 miles and all that stuff? Do you still have it?6 A Oh, sure.7 JUDGE CARD: You may have to look them8 up again, and that may be a daunting task.9 A Okay. 1176 for the .25, that's natural

10 Discharge Point A, and 1286 for the developed11 Discharge Point A.12 JUDGE CARD: Thank you.13 Q (By Mr. Dunbar) If you turn to Page 1167 of14 the application in the part that you have in front of15 you, that's Volume 4 of 5, does it show the drainage16 areas for the various discharge points for the17 existing or natural conditions in acres?18 A Yes, for our rational method calculation,19 yes.20 Q Okay. And for Discharge Point A, you have21 158 acres --22 A Yes.23 Q -- for existing conditions? And for24 Discharge Point B, you have 75 acres?25 A Yes.



23 (Pages 319 to 322)

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1 Q Okay.2 A You had asked me to calculate it based on the3 HEC results.4 Q I understand.5 A There are differences in significant figures6 there.7 Q Okay. Is the numbers shown on 1167 using the8 rational method in acres probably a more accurate9 number to use than the square-mile number in the HEC-1

10 model?11 A It would be, but if you're going to compare12 it to the other HEC-1 model, then it's better to use13 apples to apples.14 Q Okay. Well, if you turn to Page 1273 of your15 application, it has a similar table for developed16 conditions showing the acreage for each discharge17 point, does it not?18 A Yes.19 Q So it would be fair to compare the table20 on 1167 for existing conditions to the table on 127321 for developed conditions since they're both in acres?22 A Yes.23 Q All right. And for the developed conditions24 for Discharge Point A, you have acres calculated as25 181 acres?

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1 A Yes.2 Q And for Discharge Point B, you have an3 acreage of 164 acres?4 A Yes.5 Q Okay. So for Discharge Point B under the6 natural conditions, 75 acres are draining off the site7 to the north towards the unnamed tributary. Correct?8 A That's correct.9 Q And under proposed conditions, you are

10 proposing a design that will increase that drainage11 area at that Discharge Point B to -- from 75 acres to12 164 acres. Correct?13 A That's correct.14 Q Why would you do that?15 A We did it because we were designing the16 landfill -- we were designing a landfill.17 Q Okay.18 A And that was the result of designing the19 landfill.20 Q Okay. Could you have designed the landfill21 so that you didn't divert the drainage area to22 Discharge Point B beyond what it naturally has?23 A My concern was not the drainage areas. My24 concern was the discharge at the discharge points.25 Q Okay. You did not answer my question. My

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1 question was, could you have designed your drainage2 system so that you only had 75 acres draining to3 Discharge Point B like there is under the natural4 conditions?5 A I could have designed it so that it was6 only -- I don't know.7 Q You don't know if you could have done that?8 A No, I don't know because I can't -- I can't9 take it in a -- I can't just look at Discharge

10 Point B. I have to look at the effects of everything11 else, getting all the ditches to run down hill, you12 know, you can't just look at a volume and say "Oh, I'm13 only going to have 75 acres going there." You have to14 look at the overall design of the landfill itself and15 your perimeter drainage system. It's not as easy to16 say "Oh, you can only have so many acres going there,"17 and there's no requirement to only have so many acres18 going there.19 The requirement is to look at the20 discharge from the site, and that's what we have done.21 How many acres go where I'll figure out -- I'll figure22 into our calculation and our modeling of that, but to23 try to design a landfill to just take the acreage when24 first off there is no requirement that I just take --25 that I maintain the natural acreages going to the site

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1 is -- well, is just very cumbersome and very difficult2 because the natural topography -- because we're not3 building a landfill to match the natural topography.4 We are going to by just developing a landfill and5 something other than a corn field, we're going to6 affect the drainage areas. And in this case, one of7 the effects of that is an increase of stormwater8 drainage to Discharge Point B.9 Now, that said, we then mitigated that

10 effect with the detention pond.11 Q Okay. And under these guidelines under12 Section 2.1.2 on Volumes on Page 4, doesn't it say in13 the last paragraph that "As an applicant, it is your14 responsibility to demonstrate that any volume increase15 (or decrease) is not 'significant.'"? Correct?16 A Yes.17 Q And "Typical methods for addressing these18 issues are listed below:" And the first method is19 "Demonstrate that there is no increase in volume at20 the discharge point."21 A Yes, and there are some instances we have no22 increase in volume.23 Q But that's not the case at least at Discharge24 Points A and B. Correct?25 A That is correct.



24 (Pages 323 to 326)

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1 Q Okay. The second point was "Demonstrate that2 the additional volume will be released at a rate that3 will not significantly affect the downstream receiving4 water body."5 A And that's what we've done.6 Q Okay. And released at the rate -- and what7 rate are you releasing it at?8 A We're typically releasing at a rate at or9 below Discharge Point B and Discharge Point A that

10 you've been talking about. Those are both below the11 natural condition peak flow rate.12 Q Peak flow rate, but what about all the other13 flow rates throughout the entire hydrograph, are they14 always lower than the natural condition flow rates?15 A We've demonstrated that because the peak flow16 rate is lower, that it's not going to significantly17 affect the downstream receiving water body as we've18 talked about. It's not going to increase the velocity19 in the channel. It's not going to increase the depth20 of the water in the channel. It's not going to21 increase the width of the flooded area of the22 downstream receiving water channel.23 Q But it can increase flooding in Mustang Creek24 and in the unnamed tributary as those discharges from25 Discharge Point A and B get to those creeks. Correct?

Page 324

1 It could, but you don't know because you didn't2 analyze it.3 MR. MOORE: Wait a minute. Objection.4 That's purely argumentative. There's a question on5 the table. He didn't allow the witness to answer it.6 Then he followed it up with argument. If there's7 still a question on the table, you can have the8 witness answer it.9 JUDGE VICKERY: I'm going to sustain the

10 objection. And just repeat the question, although I11 think you've asked him that question several times12 before that he didn't analyze Mustang Creek, but go13 ahead and repeat --14 MR. DUNBAR: All right. Then I'll move15 on.16 Q (By Mr. Dunbar) On the next page, the fourth17 bullet says you can "Use stormwater retention ponds,"18 does it not?19 A The third bullet does.20 Q I'm sorry. You're right, it is the third21 bullet. You can "Use stormwater retention ponds."22 Correct?23 A Yes. And actually I believe in the guidance24 document that came out several months prior to this25 June one, they had removed that. So it seems to be

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1 something that the state is having a hard time coming2 to grips with themselves.3 That said, even though it does say this,4 I personally don't know how you would incorporate a5 stormwater retention pond into a landfill and get rid6 of the water prior to any significant event;7 therefore, I don't incorporate them into my designs.8 I incorporate stormwater detention ponds.9 Q Okay. And you said you use the detention

10 ponds to mitigate any increase in runoff volume like11 you've done in this --12 A Mitigate the effect -- I'm sorry -- mitigate13 the effects of any increase in runoff volume.14 Q Okay. Even runoff volumes that are two and a15 half times that for existing conditions?16 A Yes. I think you pointed it out that we had17 an actual decrease in the peak flow from 114 cubic18 feet per second to 106.19 JUDGE VICKERY: Mr. Dunbar, I hate to20 interrupt. I think we're going to try to stop for21 lunch around 11:45. So if you could just shoot for22 that, I'd appreciate it.23 MR. DUNBAR: Thank you.24 JUDGE VICKERY: Thank you.25 Q (By Mr. Dunbar) Sir, if you'd then turn to

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1 Page 8 of this guidance document, Paragraph 4.1 titled2 Checkpoints to Analyze?3 A Okay.4 Q And these are the various -- basically things5 kind of point by point that should be done associated6 with the analysis of surface water for these municipal7 solid waste facility designs. Correct?8 A It's Checkpoints to Analyze.9 Q Right, okay. And Checkpoint No. 3 says

10 "Calculate the volume of the runoff for predevelopment11 conditions." Correct?12 A Yes.13 Q And Checkpoint 8 says "Calculate the volume14 of runoff for postdevelopment conditions." Correct?15 A Yes.16 Q Okay. And Checkpoint 11 says "Compare the17 information for Item 3 and Item 8 and then discuss the18 differences in these values in terms of whether the19 changes are significant." Correct?20 A Yes, it does.21 Q And did you do that?22 A We don't have a discussion on volumes in the23 application, although the volumes and the effects of24 those volumes are shown in the table that you25 reference. The effects of those volumes are also



25 (Pages 327 to 330)

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1 shown in the HEC-1 model for both the natural and2 developed conditions. And the effects of the3 detention pond and how it mitigates any increase in4 runoff volumes at the downstream receiving channels.5 Q Okay. And if you turn to the page before6 that, Paragraph 4, it says -- that's titled Submitting7 an Application. It refers to an accordance with8 Section 3350.56(f)(4), which would be obviously the9 TCEQ rules. Bullet No. 3 states -- that rule says

10 that "discussion and analyses are needed to11 demonstrate the natural drainage patterns will not be12 significantly altered as a result of the proposed13 landfill development"?14 A Yes, sir.15 Q Okay. And you're saying you haven't had any16 discussion of runoff volumes to demonstrate that the17 pattern is not simply altered. You just have a18 discussion about peak flows?19 MR. MOORE: Objection to the20 characterization of the witness' testimony. That's21 not what he testified to.22 JUDGE VICKERY: I'm going to -- I'm23 going to have to have the court reporter read it back.24 I was writing something down.25 MR. DUNBAR: Let me make it simpler,

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1 Judge.2 JUDGE VICKERY: If you want to rephrase,3 that will be quicker.4 MR. DUNBAR: Yeah.5 JUDGE VICKERY: Okay. Thank you.6 Q (By Mr. Dunbar) Can you show me in the7 application where you discuss the differences in the8 runoff volumes as they relate to natural drainage9 patterns not being significantly altered?

10 A Yes, as I said, it's --11 Q Show me in the application, please.12 A Okay. Well, first, you would have to look at13 the HEC-1 analysis for Discharge Point A, and you'll14 see the runoff volume generated as a result of that --15 of that storm event.16 Q I'm looking for the discussion of the17 comparison of the runoff volumes. Is there a18 discussion of the comparison of runoff volumes in the19 application, not the numbers, a discussion, a20 narrative that talks --21 A A narrative that talks about runoff volumes?22 Q And the comparison between existing and23 proposed runoff volumes.24 A No, there is not a narrative on the25 discussion of the runoff volumes.

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1 Q There's only numbers?2 A Yes, but numbers that show the effect of the3 volumes and the effect of that on the receiving4 channel. And the ultimate thing, as I've said many5 times, is the discharge at -- of the downstream6 receiving water bodies.7 Q And back on the guidelines, Page 8, Item8 No. 13 states "Determine the need for detention and9 retention of the excess runoff that is generated by

10 the postdevelopment conditions." Correct?11 A Yes, sir.12 Q Did you determine that there was a need for13 retention of the excess runoff that's generated at14 Discharge Points A and B because of the15 postdevelopment condition?16 A No, we used detention ponds.17 Q Okay. Item No. 14, "Calculate the size of18 any pond, ditch or other feature that will be used to19 reduce the peak flow rate and runoff volume at each20 discharge point at the permit boundary." Did you do21 that in this case?22 A Yes, we did.23 Q Okay. Did you reduce -- did you use your24 ponds to reduce the peak flow rate?25 A Yes.

Page 330

1 Q Did you use the ponds to reduce the runoff2 volume?3 A No, we did not.4 Q The runoff volume has not been reduced as a5 result of your detention pond design. Correct?6 A The detention pond will not reduce runoff7 volume.8 Q But it -- I'm sorry.9 A It will reduce the peak flow rate.

10 Q But a retention pond would reduce the runoff11 volume. Correct?12 A I don't know how to design a retention pond13 that would properly reduce the runoff volume.14 Q Turn to Page 10 of the guidance document,15 Paragraph 5.3. It states How to Show Effects on Peak16 Flows, Velocities and Volumes, do you see that, sir,17 on the top?18 A Yes, sir.19 Q And the second sentence says "include20 discussion about how the proposed development of the21 landfill affects the shape and time to peak values of22 hydrographs for each condition at the permit boundary23 as well as any relevant downstream analysis point,24 such as adjacent lands, downstream creeks and25 downstream reservoirs." Do you see that?



26 (Pages 331 to 334)

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1 A Yes, sir.2 Q Did you do that in this case?3 A Yes, sir.4 Q Okay. How did you determine the effects of5 the shape and time to peak values of hydrographs?6 Show me in your application where there's shape and7 timing of hydrographs.8 A Well, the shaping and timing of hydrographs9 are included in the HEC-1 analysis for the discharge

10 points. Particularly let's look at Discharge Point C,11 which is Mustang Creek. In that we have computed,12 using a variety of different drainage areas, including13 drainage areas from the landfill itself, the14 discharges. And the HEC-1 program includes -- looks15 at the shape and the timing of those hydrographs.16 So -- and then takes that into account in computing17 the overall discharge onto the adjacent lands from --18 from Mustang Creek.19 Q But you didn't print any of the hydrographs20 out that your HEC-1 model created, did you?21 A No, I did not. There's no requirement to22 print out the hydrographs.23 Q I understand. And they're not in the24 application, are they?25 A No. The HEC-1 analyses are.

Page 332

1 Q And you didn't evaluate the effects of the2 shape and time to peak values of hydrographs at any3 relevant downstream analysis point such as adjacent4 lands, downstream creeks and downstream reservoirs,5 did you?6 A Yes, I did. At Discharge Point C, there's a7 combination of many --8 Q What about --9 A -- many hydrographs at Discharge Point C.

10 The same thing with Discharge Points E and F.11 Q What about A and B?12 A No, because A and B, there are no combination13 hydrographs that come together at Discharge14 Points A -- well, actually there are. There are15 hydrographs that come together at Discharge Points A16 and B, and those, in fact, have been modeled in the17 developed condition to give the ultimate discharge --18 the ultimate flow rate, which is what you get for19 Discharge Point B.20 The resulting flow rate that you get for21 Discharge Point B and A is not necessarily the water22 coming out of the culvert. It's the water coming out23 of the culvert combined with that water that's also24 flowing there from other on-site drainage areas. And25 that -- where that leaves is a combination of two

Page 333

1 hydrographs that then come together to form the peak2 flow rate, which is what we've demonstrated in our3 application.4 Q But you did not then evaluate how those5 discharges leaving Discharge Points A and B combined6 with the hydrographs and the unnamed tributary of7 Mustang Creek, did you?8 A No.9 Q Okay. If you'll look at Page 13 of the

10 guidance document, Paragraph 7, titled Designing11 Detention Ponds, and 7.1 that says What Analysis is12 Required, do you see that? It's at the bottom of the13 page.14 A Yes, I do.15 Q And read along with me. It says "In16 designing a detention pond, the goal of your analysis17 should be to accommodate and attenuate values of18 velocity, flow rate and volume of stormwater that19 exceeds predevelopment conditions resulting from a20 24-hour/25-year storm event. Those three values for21 stormwater being discharged at the point of interest22 should not change significantly when compared with23 predevelopment conditions." Are you telling me that24 the runoff volume at Discharge Point B that has a two25 and a half times increase in runoff volume is not a

Page 334

1 significant change when compared to the predevelopment2 runoff volume at Discharge Point B? Is that your --3 A Not as a result of our designing the4 detention basin.5 Q I thought you said the detention basin didn't6 change the runoff volumes at all?7 A It doesn't. It controls the discharge from8 those volumes.9 Q All right. Isn't it true that you have about

10 a two and a half times increase in runoff volume at11 Discharge Point B between existing and proposed12 conditions because essentially you've diverted about13 two and a half times the drainage area going to that14 location?15 A The drainage area increase at Discharge16 Point B is 2.16 percent.17 Q Okay.18 A I mean 2.16 times.19 Q Okay. Over two times. I apologize. Isn't20 it true that the drainage area is increased over two21 times?22 A That is true.23 Q Okay. And that's contributing to the24 increase of about two and a half times of the runoff25 volume?



27 (Pages 335 to 338)

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1 A Yes, and it's -- that is one of the things2 that contributes to the increase in the runoff volume.3 MR. DUNBAR: This is probably a good4 time to break, Judge. I'm going to go in another5 line.6 JUDGE VICKERY: All right. I would7 prefer to give you a little bit more time than I did8 yesterday, but it's up to the parties. Maybe come9 back close to one or be started again at one. That

10 means everyone is in the room, and testimony.11 Mr. Dunbar, how much longer do you12 anticipate going with this witness?13 MR. DUNBAR: No more than an hour, and14 I'm going to try to cut it down over lunch, Judge.15 JUDGE VICKERY: Okay. I think that16 would be good. You know, as I discussed in the order17 granting TJFA party status, TJFA is fulfilling a role18 that I think is a healthy one in this proceeding, and19 I say that because -- and I'm not picking on TJFA at20 all, but you're approaching about -- I haven't really21 kept track of the time with anyone, but I think you're22 approaching about six hours with this witness. You're23 getting close to it. So just keep that in mind. Like24 I said, I am not going -- neither Judge Card nor I are25 interested in losing any substantive evidence in this

Page 336

1 proceeding as a result of time. I just want to make2 that clear, but you are approaching about six hours3 with this witness.4 MR. DUNBAR: Thank you.5 JUDGE VICKERY: Or actually six hours6 total. I'm sorry. Six hours total. Thank you.7 All right. Let's break for lunch.8 MR. RILEY: Judge, I'm sorry.9 JUDGE VICKERY: Did you need to stay on

10 the record?11 MR. RILEY: No, we do not.12 JUDGE VICKERY: Okay. Let's go off the13 record.14 (Recess: 11:40 a.m. to 1:00 p.m.)1516171819202122232425

Page 337

1 AFTERNOON SESSION2 TUESDAY, AUGUST 21, 20073 (1:02 p.m.)4 JUDGE VICKERY: Okay. Let's go back on5 the record. So there was a brief discussion off the6 record.7 First off, Williamson County has offered8 to provide the 2004 guidelines -- TCEQ's guidelines9 for preparing a surface water drainage plan, and I

10 would assume you would provide that tomorrow. That11 would be fine. Just sometime before the close of the12 hearing I would like to receive copies of it, and, of13 course, those copies would be distributed to all the14 parties subject to any objections. The intent being15 is that we're going to take administrative notice of16 the '04, as well as the '06, so that we have both of17 them.18 There was also a discussion off the19 record just about some 30 TAC definitions offered20 by -- or actually not offered yet, but distributed to21 all the parties by Mr. Dunbar. And, Mr. Dunbar, what22 was your intent with regard to those?23 MR. DUNBAR: Your Honor, my intent with24 that was just to show six of the TAC definitions that25 we had talked about yesterday with one of the

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1 witnesses, and it was just for ease of everyone's2 reference between the 305 rules versus the 330 rules3 regarding definitions. And --4 JUDGE VICKERY: Do you want to offer it5 as an exhibit or demonstrative?6 MR. DUNBAR: I can offer it as an7 exhibit. We can kind of go through -- I mean, I'll8 offer it as Exhibit TJFA No. 8.9 MR. RILEY: We have no objection to it.

10 I haven't had a chance to check the wording and make11 sure that it's accurate. But if there is a problem,12 we will bring it to the ALJs' attention. And, of13 course, as you said, Judge, off the record, these are14 snippets from the rules, and with that appreciation15 that this is not the entire rule --16 JUDGE VICKERY: Optional completeness is17 always --18 MR. RILEY: That's correct. And we19 really don't have to do that. The rules are on the20 books, and those are part of the case. So we're not21 going to hand you this, you know, several thousand22 page book here, but I think just with the appreciation23 that these select portions of the rules that have24 other portions that may be relevant to the proceeding.25 JUDGE VICKERY: Sure. And as I said, I



28 (Pages 339 to 342)

Page 339

1 had an extremely brief conversation with Mr. Dunbar2 yesterday while everyone was in the room but as we3 ended the hearing, and off the record, and it was just4 that he was moving back and forth between the5 definitions, and this was what he described as an aid6 for testimony. And I'm always in favor of anything7 that facilitates the development of testimony in a8 rapid way, so --9 MR. RILEY: Certainly. And, of course,

10 we are, too. And, Judge, the only response I had was11 I wanted to make sure that we had some discussion of12 it, because I did understand it had been passed out.13 So that's all.14 JUDGE VICKERY: Okay.15 MR. RILEY: So TJFA-8 --16 JUDGE VICKERY: TJFA-8 --17 MR. RILEY: -- no objection.18 JUDGE VICKERY: -- I'll admit it subject19 to anything that you come up with, and then we can20 discuss it at that point. But let's just consider it21 to be admitted for the record.22 MR. DUNBAR: Thank you.23 JUDGE VICKERY: And, yeah, we'll need24 a -- do you have a spare copy for the record?25 (TJFA Exhibit No. 8 marked and admitted)

Page 340

1 JUDGE VICKERY: And, Mr. Dunbar,2 whenever you're ready.3 PRESENTATION ON BEHALF OF APPLICANT4 (CONTINUED)5 JAMES ROY MURRAY,6 having been previously sworn, continued to testify as7 follows:8 CROSS-EXAMINATION9 BY MR. DUNBAR:

10 Q Good afternoon, Mr. Murray. I'd like to move11 on through the rest of Part 3 of the application and12 turn your attention to Attachment 12, which is the13 final closure plan, and specifically Page 2130.14 That's Volume 5 of 5 of the application.15 A Thank you.16 JUDGE CARD: What page was that again?17 I'm sorry.18 MR. DUNBAR: 2130.19 JUDGE CARD: Thank you.20 Q (By Mr. Dunbar) And while everyone is21 getting their volumes, you may want to keep Volume 222 of 5 handy.23 A Okay.24 Q And this -- this part of the application has25 to do with the final cover design for the landfill.

Page 341

1 Correct?2 A Yes, sir.3 Q And specifically Section 4 of this4 application, on Page 2129, deals with the final cover5 materials and design that you're proposing for this6 proposed landfill expansion. Correct?7 A Yes, sir.8 Q And 4.1 is the final cover design, and 4.1.19 deals with the pre-Subtitle D area, final cover

10 design. Correct?11 A Yes, sir.12 Q And again, just to refresh everyone's memory,13 there is a portion of this landfill that will have a14 final cover over the pre-Subtitle D parts of the15 landfill, and then there is also going to be a final16 cover over the post-Subtitle D parts of landfill.17 Correct?18 A Yes.19 Q And you're proposing that those two final20 covers be different. Correct?21 A Yes. In accordance with the TCEQ rules for22 final covers, yes.23 Q Okay. Now, those rules are minimum rules,24 aren't they? I mean, you could have a final cover25 that's thicker and more protective than the rules

Page 342

1 require, can't you?2 A You would have to get that approved by the3 TCEQ.4 Q Do you think they'd object to having a better5 final cover?6 A Well, I don't know.7 Q Really?8 A I don't think I can offer an opinion on the9 TCEQ.

10 Q Okay. On Page 2130, the first -- I guess11 it's the second paragraph of the two-line paragraph12 that says, "The closure design for this area consists13 of two feet of soil, consisting of 18 inches of14 infiltration layer, overlain by a minimum six-inch15 thick layer of soil material capable of supporting16 vegetation." Correct?17 A Yes, sir.18 Q Okay. And so, for the pre-Subtitle D area,19 you're proposing a final cover design that has two20 feet of soil?21 A Yes, that's correct.22 Q Okay. If you turn to Volume 2 of 5,23 Page 252. And it's Paragraph 4.7, final cover erosion24 protection. And the second paragraph reads, "The25 final cover of areas with a pre-Subtitle D liner will



29 (Pages 343 to 346)

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1 consist of 12-inch erosion layer over an infiltration2 layer consisting of a minimum of 18 inches of earthen3 material." Correct?4 A Yes, it does.5 Q And that adds up to two and a half foot final6 cover thickness?7 A Yes.8 Q And I was just trying to figure out which one9 you're actually proposing, two feet or two and a half

10 feet.11 A One moment, please.12 Q All right.13 A Okay. On Page 2485, we show the14 pre-Subtitle D final cover section. It is six inches15 or half a foot minimum vegetative cover and a foot and16 a half of the recompacted clay.17 Q So is this Page 252 site 12-inch erosion18 layer incorrect?19 A Yes.20 Q It should be six inches?21 A Yes.22 Q All right. Are you sure you don't want to23 make the whole thing two and a half feet? Would that24 be more protective of the environment or less25 protective?

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1 A It would be more protective.2 Q Okay. So you wouldn't want to recommend,3 then, keeping the 12-inch erosion layer so it doesn't4 erode as fast?5 A Well, the two feet is in accordance with the6 TCEQ guidelines.7 Q And you always follow those guidelines.8 Right?9 A The regulations? Yes.

10 Q And what about the guidelines?11 A The guidelines to the extent that they apply,12 yes.13 Q Okay. I'm trying to move on quickly here.14 If you'd turn your attention to Attachment 14 of15 Part 3 of the application, which is still Volume 5 of16 5, which starts on Page 2240, regarding landfill gas17 management plans.18 A Yes.19 Q And specifically, if you turn your attention20 to Page 2254, Section 3.2, routine building structure21 monitoring.22 A Yes, sir.23 Q And on the first sentence there, it talks24 about on-site structures will be monitored25 continuously for any potential gas accumulation, and

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1 will be supplemented by monitoring with handheld2 combustible gas indicators on a quarterly basis.3 Correct?4 A Yes, sir.5 Q And what's the purpose of monitoring for6 potential gas accumulation in buildings -- or on-site7 structures?8 A To make sure that gas does not accumulate in9 the structures, and if so, then the monitoring

10 equipment will go off, and the people could vacate the11 structure until such time as it can be ventilated.12 Q Otherwise, there's a potential that the gas13 could accumulate to the point that it could combust14 and blow up?15 A Yes.16 Q Okay. You indicate there that you can use17 handheld combustible gas indicators to do that for18 you. Correct? On the second paragraph there. Well,19 in the first paragraph as well.20 A Well, that's for the -- that's for the21 quarterly monitoring would be what the handheld22 combustible gas indicators --23 Q Right. In other words, someone goes out and24 by hand, with a combustible gas indicator, and check25 to make sure everything is okay. Right?

Page 346

1 A Yes.2 Q Okay.3 A Yes. Because you've got the permanent4 monitors mounted in the building, and quarterly you go5 out and basically reconfirm what the permanent6 monitors are showing. It's sort of an additional7 level of safety.8 Q Okay. And on Page 2253, under the 3.1.49 monitoring equipment -- I want to say it's about the

10 third paragraph down -- it starts with, "The dual11 range combustible gas indicator." Do you see that,12 Landtec GA-90 gas analyzer or similar?13 A Yes, sir.14 Q Do you see that? Is the Landtec GA-90 gas15 analyzer one of those combustible gas indicators that16 you could use to do this?17 A Yes, I think so.18 Q Okay. Do you know if the Landtec GA-90 gas19 analyzer -- if Landtec, the manufacturer, suggests not20 using that in confined areas for safety reasons?21 A I don't know.22 Q No?23 (Discussion off the record)24 JUDGE VICKERY: Should we go off the25 record?



30 (Pages 347 to 350)

Page 347

1 MR. RILEY: Yeah, I think so, Judge.2 JUDGE VICKERY: Let's go off the record3 for a moment.4 (Recess from 1:17 p.m. to 1:25 p.m.)5 JUDGE VICKERY: So we've had a6 discussion about -- and did you want to mark this?7 MR. DUNBAR: Yes, sir.8 JUDGE VICKERY: Okay.9 MR. DUNBAR: No. 9.

10 (TJFA Exhibit No. 9 marked)11 JUDGE VICKERY: All right. We've had a12 discussion off the record about TJFA-9. It is a13 four-page document. It is basically a three-page14 excerpt from an operational manual for the GA-90 gas15 analyzer. In the course of that discussion, counsel16 for Williamson County has agreed that Mr. Murray can17 be cross-examined with the use of this exhibit;18 however, Williamson County reserves the right to19 either re-call this witness at a later time to explore20 issues of optional completeness -- which it's a21 77-page document originally, the manual itself -- or22 call another witness. Is that correct?23 MR. RILEY: Yes, Your Honor. Thank you.24 JUDGE VICKERY: All right. Mr. Dunbar,25 did you have anything you wanted to add?

Page 348

1 MR. DUNBAR: No, Your Honor.2 JUDGE VICKERY: Okay. Thank you.3 Proceed.4 Q (By Mr. Dunbar) Mr. Murray, you've been5 handed TJFA Exhibit No. 9, and it is represented as6 being the operation manual for the GA-90 gas analyzer.7 Is that your understanding?8 A Yes, it appears to be an operation manager9 for the GA-90 gas analyzer, Version MK2C 1.12.

10 JUDGE CARD: Operation manual, that is?11 A Operation manual, yes.12 Q (By Mr. Dunbar) And my question to you is is13 this the GA-90 gas analyzer or similar type of gas14 analyzer that you were referring to in my previous15 questions that you said was okay to use in monitoring16 gas accumulation in on-site structures such as17 buildings?18 A Well, it is a GA-90 gas analyzer. I don't19 know if there's another version, that this would be20 more suitable to monitoring the inside of buildings.21 The reference where we talk about the Landtec GA-9022 gas analyzer on Page 2253, we talk solely about using23 it for monitoring the methane monitoring probes and24 the bar hole probes. We don't actually talk about25 using this in -- in the monitoring in the buildings.

Page 349

1 And if we were to monitor in the buildings, well,2 then, it would be with a handheld monitor that, of3 course, with anything would have to be appropriate for4 said use.5 Q Okay. And that's why I asked the question6 previously to show you this was -- I asked you what7 kind of handheld combustible gas analyzer could be8 used and if this was one of them that you had referred9 to on Page 2253, and you said it was.

10 A I thought it was, but on further11 recollection --12 Q Okay.13 A -- or review of this, it would -- this may or14 may not be appropriate for use in a building. It does15 discuss confined spaces, and we are in a building.16 But this building and this room that we're in would17 not qualify as a confined space under the OSHA rules18 for confined spaces.19 But -- so whether or not this would20 actually be a useful tool in monitoring the buildings,21 I'd have to review it some more to make sure that it22 really was an issue. It may not be appropriate. It23 may be appropriate. But, either way, the building24 would be monitored with a handheld monitor that is, of25 course, suitable for use inside a building.

Page 350

1 Q Okay. I'd like to now move on and -- move on2 to Part 4 of the application, the site operating plan,3 which is also Volume 5 of 5.4 A Okay.5 JUDGE CARD: Mr. Dunbar, did you want to6 offer this, the No. 9?7 MR. DUNBAR: Oh, yes. I'm sorry. I'd8 like to offer Exhibit No. 9 into evidence, given the9 qualifications we had previously talked about.

10 MR. MOORE: I didn't catch that last11 part.12 MR. DUNBAR: Given the qualifications13 that the Judge had previously talked about with14 regards to allowing the applicant opportunity to15 provide the complete document or provide additional16 testimony regarding it.17 MR. MOORE: Subject to that18 qualification, no objection.19 JUDGE VICKERY: All right. TJFA20 Exhibit 9 is admitted.21 (TJFA Exhibit No. 9 admitted)22 Q (By Mr. Dunbar) Mr. Murray, the site23 operating plan is a document you prepared or was done24 under your direct supervision?25 A Yes, sir.



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1 Q Okay. And this particular document is2 intended to establish kind of during the course of3 operations of the landfill certain procedures that4 should be followed by the owner and/or operator during5 the development and operation of the landfill.6 Correct?7 A Yes. I like to refer to it as the procedures8 to be followed by the landfill personnel for9 day-to-day operations.

10 Q Okay. And is the intent of this site11 operating plan that it become part of the permit, if12 it actually gets issued?13 A Well, I guess. It was my belief that the14 entire application became part of the permit if it's15 issued.16 Q Yeah. And you're right. That's my belief17 also. Including this site operating plan?18 A Yes, sir.19 Q Okay. And I guess my question to you is do20 you think it's appropriate that a specific named21 operator be included in this site operating plan, like22 Waste Management of Texas?23 A I don't see why it wouldn't be appropriate,24 since they are, as we discussed, operating the site.25 Q But what if Williamson County decides to

Page 352

1 change operators and have someone else operate the2 site? Would it then be appropriate that the new3 operator is utilizing this site operating plan that4 doesn't reference their name, but references the name5 of a previous operator?6 A Yes. That would just be one of the revisions7 that would have to be pursued by a permit modification8 should the operator of the site change.9 Q Okay. So Williamson County would have to go

10 through a permit modification if they wanted to change11 the operator -- the day-to-day operator that they have12 under contract to somebody else -- they'd have to go13 and modify this SOP to remove the name of Waste14 Management of Texas if it's in this site operating15 plan?16 A They could. I might, if it was me, pursue17 possibly just adding a forward to the permit saying18 that anywhere it says "Waste Management of Texas," it19 now says "Bob's Garbage Company." That's what I would20 try to do and see if that might not get approved, as21 opposed to going through the entire thing and removing22 Waste Management's name. But you can do it either23 way.24 Q Yeah. Remove the name and just put in25 "Day-to-day operator." Then you don't have to change

Page 353

1 anything after it's issued. Right?2 A Yes, that you could.3 Q Okay. And you don't have a problem with that4 if the ALJ or the Commission would propose wanting to5 do that?6 A I can't think of any reason I would have a7 problem with that.8 Q Okay. And specifically on Page 2506, under9 Section 4.2, control of prohibited waste, it refers

10 to, "WMTX has and will continue to implement a11 comprehensive program for waste screening that12 minimizes the potential for inadvertent acceptance for13 prohibited waste."14 And in addition on Page 2510, under15 4.2.3, random inspections, it states, "Waste16 Management, special waste acceptance procedures,17 provides for the prescreening of all commercial18 customers bringing industrial waste to the landfill."19 A Yes. And the only reason that's in there is20 because Waste Management, as a company, has a very21 specific, very detailed special waste program that --22 that in my opinion goes -- goes beyond the23 requirements of the TCEQ, and -- and that's the only24 reason that Waste Management is mentioned in those two25 particular locations, because it's referencing their

Page 354

1 corporate special waste program.2 Q And is that special waste program detailed in3 the site operating procedure -- or site operating4 plan -- excuse me -- so that a new contract operator5 would be subject to doing the same thing?6 A Much of it is discussed in here, yes.7 MR. DUNBAR: Okay. Your Honor, it's8 about a half hour, and I told you I hoped to do that,9 so I will pass the witness.

10 JUDGE VICKERY: Mr. Ekoh?11 MR. EKOH: Judge, I'm ready.12 JUDGE VICKERY: Okay.13 CROSS-EXAMINATION14 BY MR. EKOH:15 Q Good afternoon, Mr. Murray. My name is Chris16 Ekoh, and I represent the Executive Director in this17 proceeding. My cross will be a little bit different.18 The ED's purpose is to complete the record.19 A Yes.20 Q A lot has been said about flow hydrograph?21 A Yes, sir.22 Q And if you look on Page 250, I believe it is,23 on Volume 2 of 5.24 A Yes, sir.25 Q Now, my understanding from your testimony is



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1 basically that the flow hydrograph supported part of2 the numbers that you have on this table. Is that3 correct?4 A Yes. The -- the help model -- or the HEC-15 model that we use to generate these numbers generates6 a hydrograph at every node that we tell it to generate7 at. So it generates that. And then from that it8 gives us, in a variety of different reports that we've9 printed out -- more that we can than we can't -- a

10 variety of different information. So we use those11 hydrographs to get information from that. We didn't12 print them out, but if you don't know what you're13 doing with them, then they're not very useful anyway.14 And the computer -- the program has already given us15 the relevant information that we would need to take16 from that anyway.17 Q Okay. To the extent that the protestants in18 this case are requesting it, and also to the extent19 that it might assist the Court in developing the20 complete record in this case, is that something that21 you can provide for the Court before the conclusion of22 this proceedings?23 A The hydrographs at all the discharge points?24 Q Right.25 A Certainly.

Page 356

1 Q Now, there were also some discussions on the2 record with respect to retention ponds. Do you recall3 those discussions?4 A Yes, sir.5 Q Now, help me to understand this. What is the6 difference between a retention pond and a detention7 pond when it comes to surface water drainage?8 A Well, one -- as I mentioned earlier, they're9 very frequently used as the same thing, erroneously.

10 But a retention pond, the water goes -- part of the11 water goes in and doesn't leave. The practical12 problem with that is that -- well, once the water is13 in there, it might as well be dirt. It might as well14 just be -- you might as well have just filled that15 pond up unless you've got some way to get it out of16 there. In Texas, in most instances, it's just not17 very practical unless it's a very large -- basically a18 small lake or a lake or something like that.19 One of the things you'll notice is if20 you look into the TCEQ's drainage guidance manual,21 they've got a section in there on the design of22 detention ponds. There's no section in there on the23 design of retention ponds.24 Q Now, there was also some discussions on the25 record with respect to comparison of runoff volume

Page 357

1 between existing and the developed drainage pattern.2 Do you recall those discussions?3 A Yes, sir.4 Q And the issue there was that in the5 application packet that you put together, there is no6 discussion or narrative of the comparison. Is that7 correct?8 A There -- there is no discussion -- textual9 discussion, written narrative, of -- of the comparison

10 of the natural to developed volumes. That doesn't11 mean we didn't take it into account. We, of course,12 took it into account in our design of our detention13 ponds, and then -- and then we discuss in Attachment 614 the effect of those detention ponds.15 Q Is it possible for you to provide a narrative16 discussion of the comparison between the runoff volume17 as it exists now as opposed to the developed drainage18 pattern?19 A Yes, I guess we could. We could say that we20 computed the volumes and that we mitigated the effects21 of those volumes by putting it in the detention ponds22 that -- that assured that the downstream receiving23 channels would not be impacted by the flows24 discharged.25 Q Is that something that you might be able to

Page 358

1 provide in writing as a supplement to your application2 in this case?3 A I guess -- is that something that can be4 provided supplementary? I don't know. I could5 certainly write it. I don't know -- I don't really6 understand the process well enough to know how I would7 put it back in. I guess I'd look for some guidance8 there.9 Q To the extent it helps the Court, would you

10 discuss that with your attorneys at some point?11 A Certainly.12 Q Okay. Now, very early on yesterday there13 were some issues with respect to the areas of14 expertise that you were going to be testifying on.15 Now, are you being -- are you testifying with respect16 to the -- basically you are not testifying as an17 expert on traffic engineering. Is that correct?18 A I'm -- I think I am expert enough to -- to19 review the information that we received from TxDOT, to20 review the roadway in its current level of service,21 and -- and to make projections on that. I do think I22 have enough experience and knowledge to do that, and23 which -- which I think we have provided, to the extent24 it's required, in the rules.25 Q Just so the record is also clear on this, are



33 (Pages 359 to 362)

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1 you testifying today as an expert in the area of2 geology?3 A No, sir.4 Q How about in the area of geotechnical5 engineering?6 A I have a lot of geotechnical engineering7 experience; however, we are going to have somebody8 else testify additionally on that.9 Q And how about in the area of geological

10 sciences?11 A In what again, please?12 Q Geological sciences.13 A Do you mean like the wetlands and endangered14 species?15 Q All of that included, yes.16 A Okay. No.17 Q Now, in part of the discussions yesterday,18 there were some issues relating to prohibition of the19 operation of heavy equipment during certain periods of20 time.21 A Yes, sir.22 Q Do you recall that discussion?23 A Yes, sir.24 Q The Williamson County landfill is not25 currently permitted for 24/7 operation. You

Page 360

1 understand that. Is that correct?2 A Yes, sir.3 Q And part of the expansion amendment is to4 request that it be permitted to operate 24/7. Is that5 correct?6 A Yes, sir.7 Q Would there be a situation where you might8 consider the operation of heavy equipment not9 appropriate at certain hours?

10 A Not -- not that I'm aware of.11 Q Part of the concerns with the 24/7 operation,12 as I understand it, based on your testimony, is that13 it allows you some flexibility. Is that correct?14 A Yes. Flexibility for, let's say, market15 forces, those waste haulers that service various16 establishments at all hours of the night, yes.17 Q And there are also some options available,18 such as a transfer station, that can accommodate those19 types of off-hour type hauling activities. Is that20 correct?21 A I'm not aware of any 24 hour a day transfer22 stations in the city of Austin. I can't -- or in the23 Greater Capital Area, and I'm not really that familiar24 with how many transfer stations are actually in that25 area.

Page 361

1 Q But to the extent that one exists, it might2 help alleviate that concern with the flexibility that3 you have. Is that correct?4 A I don't -- well, not necessarily, no.5 Q We also had some discussions regarding a no6 objection letter from TxDOT. Do you recall that7 discussion?8 A Yes, sir.9 Q Do you actually have a no objection letter

10 from TxDOT?11 A Do I? No. I wasn't copied on it. I believe12 it went to Mr. Pompuntigorn -- or I'm sorry. It was13 written to Mr. Holderread.14 Q But was that part of the application packet15 that you submitted that we are discussing today?16 A No, because it -- it was never provided to17 me. It went to the TCEQ and wasn't provided to me.18 Q We've also had a lot of discussions regarding19 having both names, this Williamson County as the owner20 and the Waste Management of Texas as the site operator21 or operator of the facility. Do you recall those22 discussions?23 A Yes, sir.24 Q My understanding is in all of the title pages25 to the documentation that you provided in your

Page 362

1 application, you have both names on there. Is that2 correct?3 A Yes, sir.4 Q And in some instances with respect to who the5 applicant is, you referenced both names. Is that6 correct?7 A Yes, occasionally. Mr. Dunbar pointed that8 out particularly in the notices.9 Q Did you have the opportunity to listen to

10 Judge Gattis' testimony yesterday?11 A Yes, sir.12 Q And if I'm paraphrasing this correctly, what13 he basically testified to was that consistent with14 TCEQ rules, Waste Management might be designated as15 operator. Do you understand his testimony that way,16 to the extent that it's consistent with TCEQ rules?17 A Yes.18 Q Now, if that is the case and you have to redo19 this, is it possible to now put in operator,20 consistent with Judge Gattis' testimony, in the areas21 where Waste Management is referenced in the permit?22 A I guess two things. One, going back to --23 I'm not sure how this process you're talking about24 would work. And, two, I don't think that there would25 be any, you know, objection to clearing that up, as



34 (Pages 363 to 366)

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1 you talk about Waste Management being the operator and2 then Williamson County being the owner and holder of3 the permit, to the extent that they are.4 And one of the things I'll point out is5 that when we did prepare this permit and in the Part A6 form, we prepared it exactly like it's listed under7 the current permit, 1405A, which lists Williamson8 County as the site owner and Waste Management as the9 site operator. That's the permit they've been

10 operating on for the last eight or nine years.11 So it wasn't an attempt to do anything12 except continue what -- what had been going on. But13 if there's some way -- I don't know the process to14 help with what you're talking about there. I guess15 that would be more up to the attorneys for Williamson16 County.17 Q Let me shift gears to the gas pipeline18 easement.19 A Yes, sir.20 Q And I believe there are some discrepancies in21 the testimonies as to the legal description of the22 easement.23 A Yes, sir.24 Q In some parts of the application, 50/50 is25 delineated.

Page 364

1 A Yes.2 Q And there's also 75 delineated?3 A Yes.4 Q Is there a way for us to get a clearer legal5 description such that the buffer zones can be properly6 established?7 A Well, we have held the landfill back a8 minimum of 130 feet from the center line of that9 pipeline. The center line of the pipeline is known.

10 These easements are, one, very old and, two, very11 anomalous in just that they say there's going to be a12 pineline easement. And basically it will be 50 or 7513 feet. I believe the 25 feet, from what I understand,14 was added when the pipeline company came in and took15 out an old pipeline and put in a new pipeline.16 Either way, we know where the pipeline17 is. If the easement is 75 feet, we still are well18 away from that easement and well away from the19 pipeline. So, if it's 75 feet, we're at a minimum 13020 feet from that easement and from -- or from the21 pipeline.22 MR. EKOH: I'll pass the witness, Judge.23 JUDGE VICKERY: Mr. Humphrey?2425

Page 365

1 CROSS-EXAMINATION2 BY MR. HUMPHREY:3 Q I think that you've represented the4 application was done by you or under your supervision.5 Is that correct?6 A Yes, sir.7 Q So may I infer from that that you actually8 did some of the original work yourself on the9 application and others did other parts of it?

10 A Yes, sir, that's correct.11 Q And how large was your staff of engineers12 that helped you?13 A Out of my office, there were five people.14 There were -- out of Earthtec, engineers, geologists,15 technicians, I would hazard to guess at least another16 half dozen. Out of MFG, I would -- I would estimate17 three or four people. Let's see. Who am I18 forgetting? Out of SWCA, probably two to -- two to19 four people.20 Q I'm probably more interested in the five that21 are in your organization, because they're the ones22 that you have direct supervision over. Is that23 correct?24 A Yes, sir.25 Q And I think I remember during

Page 366

1 cross-examination earlier on you that said you2 reviewed extensively the work that they did?3 A Yes, sir.4 Q And how is it that you go about -- if I were5 one of your engineers presenting a portion of the6 application, what is your method for reviewing that7 work?8 A Well, one, we talk at least weekly, if not9 more frequently. It's a small office. As things

10 arrive, they come right into my office. And then as11 they develop drafts along the way, we sit down and12 review the documents. As you can tell, these are13 very -- very large documents, and there's an awful lot14 of information in them.15 Q Do you go through every line of something --16 like, say, for example, if I were one of your17 engineers, do you go through every line of what it is18 that I do, or do you sort of spot check?19 A I would go -- I read the entirety of every20 document specifically that we produced, and21 additionally all the documents that were produced for22 us. So I can say that I have read this entire23 document.24 Q Okay. And once again concentrating on the25 work of the engineers that are directly under your



35 (Pages 367 to 370)

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1 supervision, did you actually wind up correcting any2 part of their work, or did you approve it as they3 presented it to you?4 A Oh, no. Of course I correct things as we go5 along very frequently. It's more frequently than they6 would prefer.7 Q Okay. And during Mr. Dunbar's8 cross-examination, would you agree that he identified9 at least some errors and discrepancies in the

10 application?11 A Yes, sir.12 Q From the ones that he had pointed out to you,13 was that work that you did personally, or is that some14 of the work that your staff did, or both?15 A That would be work that was a compilation16 of -- of my staff.17 Q Okay. And how do you account for missing --18 or not identifying those discrepancies?19 A And it's an excuse -- no excuse is a good20 excuse for these discrepancies; however, this document21 was -- this -- this document was originally prepared22 two years prior.23 JUDGE VICKERY: When you say "this24 document," can you please identify exactly what you're25 talking about?

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1 A Yes, sir.2 JUDGE VICKERY: Okay.3 A Volume 1 and 2 -- Parts 1 and 2, was4 initially prepared two years prior as part of a land5 use application. The rest of the document, including6 Volumes 2, 3, and 4, were not prepared at that time.7 It was submitted -- it was found technically complete,8 and the TCEQ actually held public meeting on that.9 In the meanwhile, we prepared the

10 remainder of the application. Parts -- the remainder11 of the application includes Parts 3 and 4. But when12 we submitted that, it was then decided to change the13 process from this bifurcated process to one whole14 process, and -- so very quickly we went through and15 updated this Part 1 and 2 document to -- to bring it16 up to speed since it had been buried two years17 earlier. We now had to bring it back up to speed,18 make some revisions to it, and get that submitted in.19 Like I said, there are no good excuses.20 Q (By Mr. Humphrey) Okay.21 A But that is reality of what happened.22 Q Sure. And I guess what I want to find out23 also is with respect to the errors and discrepancies24 that Mr. Dunbar identified, as he was going over25 those, did you find that they were errors in omission,

Page 369

1 such as you just didn't happen to go over that part of2 it, or do you remember going over these things and3 just not noticing what Mr. Dunbar did?4 A Yes. I've just got to believe I just did not5 notice it.6 Q So it was probably errors of omission?7 A Could you define "errors of omission"?8 Q Well, sure. In other words, as you said9 yourself, it's voluminous. There's a great deal to go

10 over. So, now, Mr. Dunbar identifies an error which11 you agree with. As you were going over it, did you12 say to yourself, "Gosh, I didn't even notice that line13 or that part of the application," or were you thinking14 to yourself, "Gee, I remember going over that, and I15 just didn't notice what Mr. Dunbar noticed"?16 A Yeah, I guess that's probably it. Because I17 guess when I think "omission," that I left it out.18 Q Right. Yeah. It's not something you19 overlooked. You just went over it and didn't notice20 what Mr. Dunbar --21 A Yeah. I didn't notice that one number was22 different here than it was someplace else, yes.23 Q Okay. And something else that Mr. Ekoh had24 reviewed a little bit -- and it's in your prefile --25 you have to get particular experts who had special

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1 expertise in geology, geotechnical engineering,2 hydrogeology. Is that right?3 A Yes, sir.4 Q Okay. And for the parts of the5 application -- I think -- were they primarily6 responsible for Attachments 4, 5, and 11 in Part 3?7 Is that right?8 A Yes. 4, 5, 11, part of Attachment 6, and9 part of Attachment 10.

10 Q Okay. So, for those areas where you had to11 get people who had specialized expertise, would I be12 safe in assuming that with respect to those parts of13 the application, other than making sure it was all14 filled out, that for the most part you accepted what15 they did rather than review it the same way you16 reviewed your engineer's work?17 A I reviewed it and commented on it to the18 extent that I was qualified and capable of commenting19 on it.20 Q Right. And to the extent that you understood21 that parts of this were beyond your expertise was more22 accepting the work that they did. Is that a23 reasonable way of stating it?24 A Yes, I think so.25 Q Okay. Thank you.



36 (Pages 371 to 374)

Page 371

1 MR. HUMPHREY: Thank you, Your Honor.2 I'll pass the witness.3 JUDGE VICKERY: I have a few questions.4 CLARIFYING EXAMINATION5 BY JUDGE VICKERY:6 Q So the -- on the TXU pipeline, the actual --7 this may have been covered. As a matter of fact, any8 question I ask you may have been covered already.9 (Laughter)

10 Q (By Judge Vickery) So I'm sorry if it11 already has been. Is the 75-foot figure for the12 easement, is that the correct figure, or is it the13 50-foot? There's that discrepancy. Which one is14 accurate?15 A Yeah. The 50-foot is from 1928. The 75-foot16 is -- and a lot of this isn't even written down, but17 the 75-foot is apparently what is out there now, or18 they added another 25 feet. But it's to the pipeline19 easement, and it's -- so it is out there. And the20 pipeline is out there. So, even if it's 75 feet,21 we've still held the limit of waste, which is a22 control -- 130 feet minimum back from the location of23 the pipeline. So, whether it's 75 or 50, it's --24 we're still way -- way outside the bounds of that.25 Q Because of the 130-foot --

Page 372

1 A Offset, yes, sir.2 Q Okay. But I would like to clarify, for3 purposes of going forward, would it be safe to assume4 that the easement is 75 feet?5 A Yes, I think it would be very safe to assume6 that. Yes.7 Q Okay. And that's the figure that people8 should probably be using when we're discussing that9 forevermore?

10 A Yes, I think so.11 Q All right. So, if we can go to Page 271 --12 so this -- well, let me ask you this. What exactly13 does Page 271 depict, and just in general terms?14 A Yes. It is a cross-section, like you took a15 slice right through the middle of the landfill.16 And --17 Q Okay.18 A And if I --19 Q Where I'm going with this is the obvious20 issue that Mr. Dunbar raised about the -- and I21 believe it's on the left-hand side of Page 271 where22 it says "approximate pipeline location." And on the23 cross-section, it looks like the pipeline is actually24 right at the intersection of the slope -- rather25 steep-looking slope -- or I guess it's called drainage

Page 373

1 terrace. I'm not sure. But it's right at the slope2 of the fill and the land. Is that -- that's how it's3 depicted here. Is that an accurate --4 A What it is is the line that we should have5 had for the pipeline is not there. That line that6 you're looking at is labeled twice. It's also labeled7 below there as limits of proposed landfill. You'll8 see a similar limit on the other side of the landfill,9 limits of proposed landfill. So the actual pipeline

10 and location in this drawing should have been shown11 about 130 feet over.12 Q Right. 130 feet from the line, which appears13 to be the approximate pipeline location. That's just14 been mislabeled. Is that correct?15 A Yes. It's been labeled twice.16 Q Okay. And so -- because the thing that I was17 concerned about is you've got these 4 percent grades18 and, you know, the slopes that are reflected there.19 Those are all accurate as far as you know. Is that20 correct?21 A Yes, they are.22 Q Okay. So everything else is accurate with23 Page 271, with the exception of the approximate24 pipeline location?25 A Correct.

Page 374

1 Q Okay.2 JUDGE CARD: And it would be outside the3 limits of the landfill? Is that --4 A Yes. Yes. At a minimum, 130 feet.5 JUDGE CARD: Thank you.6 Q (By Judge Vickery) And so, then, if we can7 go to 261. I just want to make sure that I understand8 this layout plan.9 A Yes.

10 Q So the -- this is -- in the upper sort of11 right-hand center, it says, "75 feet, TXU Lone Star12 Gas easement," and then the arrow points to the dotted13 line. That is the easement -- that is the --14 A That is the pipeline.15 Q I'm sorry. That is the pipeline itself?16 A That is the pipeline itself, yes.17 Q All right.18 A And the easement would be centered on that19 pipeline. It says, "Centerline, 75-foot TXU Lone Star20 Gas easement." So it's a centerline, which is the21 pipeline.22 Q Okay.23 A And then the limit of the landfill is -- as24 you go south from there about 100, 130 feet, there's25 sort of a black dashed line similar to the pipeline.



37 (Pages 375 to 378)

5

1 That is the limit of landfill -- and you can see these2 little squares that are on here are 100 foot by 1003 foot. So you can see that that distance is more than4 100 feet. It's typically 130 to 150 feet.5 Q When you say "the little squares," are you6 referring to those passive landfill gas vents?7 A No, no, no. The squares that sort of form a8 grid over the entire thing. You can see it labeled9 numerically along the top and alphanumerically on the

10 side.11 Q Okay. All right. And then just in general,12 when -- you've been cross-examined -- and actually,13 anytime that someone mentions the sort of 3 percent14 TxDOT projected growth rates in traffic and the 3.415 percent projected -- and I think that's a county-wide16 figure for population increase.17 A Yes. It was that region up around Williamson18 County, yes.19 Q Right.20 A The overall region was experiencing growth.21 And actually, it was growth over a decade period, and22 we backed it out to 3.4 percent. And 3.4 percent, if23 you did it every year, would get you to the -- I24 forget off the top of my head -- 20 percent growth or25 something over a decade.

Page 376

1 Q All right. And this is actually just a very2 fundamental question that once again may have been3 covered at some point and I missed it. But is it4 typical in what it is that you do in an engineering5 firm, to prepare an application like this and to use6 those types of figures?7 A Oh, yes. We've done that on every permit I8 can think of that we've prepared, yes.9 Q And you use those for sources of information,

10 as well, for those --11 A Yes, we use TxDOT as sources of information.12 They are -- I guess if we weren't putting our entrance13 onto a state highway, then we wouldn't. But I've yet14 to do one that -- a landfill permit that wasn't --15 that the entrance wasn't on a state highway. So, if16 it wasn't a state highway, then you would probably17 look to the county or the city for additional18 information, because TxDOT is not going to have it.19 Q All right.20 MR. EVANS: Judge Vickery?21 JUDGE VICKERY: Yes, sir.22 MR. EVANS: May I interrupt? I had to23 leave the room. Did I miss my turn? Because I do24 have a question on that very subject.25 JUDGE VICKERY: Actually, I think in the

Page 377

1 order -- the original order of cross-examination,2 you've -- I believe you've already asked Mr. Murray3 some questions.4 MR. EVANS: Yes.5 JUDGE VICKERY: But rest assured,6 there's going to be redirect. And after -- but7 Dr. Evans, don't worry. After redirect, you'll get --8 MR. EVANS: Okay. I thought it might be9 appropriate because it is the same topic. Thank you.

10 JUDGE VICKERY: Let me just say this to11 make it easier. You're going to get a chance to ask12 your questions. Yes, sir.13 MR. MOORE: If Dr. Evans has anywhere to14 go, we wouldn't -- if he wants to take a question out15 of order, we don't object to that.16 JUDGE VICKERY: Oh, yeah. I'm sorry.17 You weren't saying that you needed to leave, were you?18 Because if you do, then you can --19 MR. EVANS: No. I did have to leave.20 JUDGE VICKERY: Right.21 MR. EVANS: So I thought they were going22 around.23 JUDGE VICKERY: Okay. No, no.24 MR. EVANS: Sorry.25 JUDGE VICKERY: No problem. Thank you.

Page 378

1 Q (By Judge Vickery) Ms. Perales asked you2 some questions about the operating hours, the heavy3 equipment, and so on and so forth. I think, in4 general, what I wanted to touch on -- and this is sort5 of a general, and you'll have to provide perhaps a6 more specific response than I anticipated. But in7 general, with this proposed amendment, can the current8 operating hours handle whatever projected increase in9 needed capacity that the landfill is going to have to

10 accommodate? Can the current hours of operation11 fulfill the needs as seen in your projections -- or12 these projections?13 Like I said, this may have been covered,14 but I just -- if it hasn't, I don't want to wait until15 I'm back in my office three months from now.16 A We really didn't look at what the market17 forces were for, you know, determining what waste18 vehicles would be coming to the landfill at what19 times. That was really -- because we were requesting20 the flexibility of the 24/7, it was left up to the21 site operator to ascertain as the development of the22 landfill and the filling of the landfill continue.23 There's no reason for them to have24 people out there to operate the landfill in the middle25 of the night if there's no garbage trucks coming.



38 (Pages 379 to 382)

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1 That said, if they're -- so they would only be open2 if, you know, economically it was feasible to be open3 and to address those people. But, no, we did not look4 at any projections into the market and what that might5 be, just that over time, as traffic gets there,6 they'll -- you know, clearly as the need develops and7 can support it, then -- then it would be something8 they would go to.9 Q Right. And that is exactly what my question

10 was focused on, less about the market. Because11 without getting into these economic sort of business12 issues, I do understand that it is being run as a13 business and that there are market factors that we're14 not necessarily chatting about right now. But I think15 I understand your response to my question.16 A Okay.17 Q And then there's been this -- and this is the18 final sort of issue I wanted to chat with you about.19 The existence of sort of -- I'd call them cross-over20 communities. You have municipalities which are inside21 of Williamson County and also inside of other22 counties. And some of the waste is going to be coming23 into this landfill, and there have been concerns24 raised about these sort of cross-over communities.25 But it's my understanding that that is going on right

0

1 now under the current permit. Is that correct, or is2 that inaccurate?3 A I believe it's correct, just because I don't4 know of any landfills in the state that have5 restrictions on their incoming waste. So that is the6 case for Williamson County. And I'm not aware of7 anyplace else where you wouldn't see that happening.8 Q I guess what I'm getting at is do these9 concerns represent -- or are they an accurate

10 reflection of a change in Permit A to this Permit B?11 That's what I'm asking. Is there a change in there12 somewhere?13 A No, no, no. Not at all.14 Q Okay.15 A No, there's no change at all. I don't see16 them -- there's no change in the area they would serve17 from one to the other, no.18 JUDGE VICKERY: All right. Redirect?19 Are you ready?20 MR. MOORE: Judge, if I could take a few21 minutes on the front end, I think it will save us a22 bunch on the back.23 JUDGE VICKERY: Certainly. Ten minutes?24 MR. MOORE: That would be perfect.25 JUDGE VICKERY: Okay. Let's come back

Page 381

1 at about 20 after. Off the record.2 (Recess from 2:10 p.m. to 2:25 p.m.)3 (Exhibit Nos. APP-213 through APP-2154 marked)5 JUDGE VICKERY: Back on the record.6 Mr. Moore?7 MR. MOORE: Thank you.8 REDIRECT EXAMINATION9 BY MR. MOORE:

10 Q Good afternoon, Mr. Murray.11 A Good afternoon.12 Q Mr. Murray, I'm going to try to stay on13 subjects, and we'll go from one subject to another14 one. The first one I'd like to talk to you about is15 the questioning that you received regarding the16 correspondence in the application and your17 correspondence with the Texas Department of18 Transportation. Do you recall that line of19 questioning?20 A Yes, sir.21 Q And if I use the acronym TxDOT, will you know22 that I'm referring to the Texas Department of23 Transportation?24 A Yes, sir.25 Q Okay. And specifically, I believe that you

Page 382

1 were questioned regarding whether you personally had2 ever received a response to your last letter to3 TxDOT -- that is, the last letter that's shown in the4 application and your correspondence with TxDOT. Do5 you recall that?6 A Yes, I do.7 Q Mr. Murray, you have a few documents there in8 front of you. The first one should be a document9 that's been marked APP-213. Will you please review

10 that document.11 A Yes, I have.12 Q Mr. Murray, could you please identify13 document marked APP-213?14 A Yes. It's a letter from Robert D. Blackwell,15 P.E., director of engineering operations with TxDOT,16 to Jeff Holderread, P.E., team leader, municipal solid17 waste permit section, waste permits division, TCEQ.18 It's regarding the municipal solid waste Application19 1405B for the Williamson County landfill.20 Q And would that application be the application21 that you prepared?22 A Yes, it is.23 Q Mr. Murray, will you please read from the24 letter beginning with, "Dear Mr. Holderread," please?25 A It says, "Dear Mr. Holderread. We have



39 (Pages 383 to 386)

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1 reviewed the permit application, MSW 1405B for2 Williamson County and have found the following.3 No. 1, the adequacy and design capacities of the4 adjacent and surrounding roadways are sufficient to5 safely accommodate any additional traffic generated by6 the proposed facility."7 Q Mr. Murray, if I could stop you right there.8 In your opinion, does that Point No. 1 respond to your9 last correspondence to TxDOT?

10 A Yes, it does.11 Q Okay.12 MR. MOORE: Your Honors, at this time,13 applicant would offer Exhibit APP-213.14 JUDGE VICKERY: Any objections?15 (No response)16 JUDGE VICKERY: APP-213 is admitted.17 (Exhibit No. APP-213 admitted)18 Q (By Mr. Moore) Mr. Murray, do you also19 recall some questioning -- I believe it was by20 Mr. Dunbar -- regarding why you labeled Waste21 Management of Texas, Inc., as the site operator on22 what's known as the Part A application form in the23 application?24 A Yes, I do.25 Q And when I refer to the Part A application

Page 384

1 form, Mr. Murray, I'm referring to the form that2 begins on Page 5 of Exhibit APP-202. So, if you could3 turn there for me, I'd appreciate it.4 A Yes, that is what's on Page 5.5 Q Mr. Murray, I believe you testified, perhaps6 in response to some of the Judge's questions, that7 prior to submitting the application to TCEQ -- that8 is, the application that we're here to talk about9 today -- you reviewed the facility's current permit.

10 Correct?11 A Yes.12 Q And the facility's current permit, would that13 be Permit No. 1405A?14 A Yes, it is.15 Q And as we sit here today, is the Williamson16 County landfill operating under that permit?17 A Yes, it is.18 Q Mr. Murray, if you'll please review the19 document that you have before you there that's been20 labeled APP-214.21 A Okay.22 Q Do you recognize this document, Mr. Murray?23 A Yes, I do.24 Q And what is it?25 A It is the permit for MSW 1405A, the

Page 385

1 Williamson County landfill, which is the landfill2 that's currently being operated under.3 Q And is this a true and correct copy of the4 permit that you reviewed prior to preparing and5 submitting the application that we're here today to6 talk about?7 A Yes, it is.8 Q Mr. Murray, I'd like to focus on the first9 page there, the cover page, if you will, of APP-214.

10 Who is listed as the permittee on the first page there11 of APP-214?12 A Williamson County.13 Q Is there any other permittee listed?14 A No, there's not.15 Q Who is listed as a side owner?16 A Williamson County.17 Q Mr. Murray, who is -- how is Waste Management18 of Texas, Inc., denoted on the first page of APP-214?19 A They are shown as the site operator.20 Q Mr. Murray, looking again at just the first21 page of Exhibit APP-214, can you tell me when Permit22 1405A was granted?23 A On the 4th day of August, 1995.24 Q I believe in your testimony -- again, I25 believe it was in response to some of the Judge's

Page 386

1 questions -- I think that you said that they had been2 operating under this permit for eight or nine years.3 A Yes.4 Q Based upon your testimony just now, would you5 like to correct that statement?6 A Yes. It would be 12 years in a couple of7 weeks.8 Q Okay. Mr. Murray, could you please turn to9 Exhibit -- it's already been entered -- APP-205?

10 A Okay.11 Q Mr. Murray, do you recognize APP-205?12 A Yes, I do.13 Q And what is APP-205?14 A It's a copy of the draft permit for this15 landfill application.16 Q And that would be for Permit 1405B?17 A That's correct.18 Q Okay. Mr. Murray, focusing on the labeling19 of the permittee, the site owner, and the site20 operator, would you please take a moment and compare21 the document that's been labeled APP-214 to22 Exhibit APP-205?23 A All right.24 Q Do you see any differences between the entity25 that's labeled as the permittee on APP-214 and the one



40 (Pages 387 to 390)

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1 that's labeled as the permittee on APP-205?2 A No. It is Williamson County in both cases.3 Q How about that site operator? Are there any4 differences between the entity that's labeled as a5 site operator on APP-214 and the one that's labeled as6 a site operator on APP-205?7 A No. It's Waste Management of Texas, Inc., in8 both documents.9 Q Okay.

10 MR. MOORE: Your Honor, at this time,11 applicant would offer Exhibit APP-214.12 JUDGE VICKERY: Any objections?13 (No response)14 JUDGE VICKERY: APP-214 is admitted.15 (Exhibit No. APP-214 admitted)16 Q (By Mr. Moore) Before we leave the topic of17 APP-214 or Permit 1405A, were you at all involved in18 the preparation of the application that was submitted19 to obtain Permit 1405A?20 A No, sir. Not at all.21 Q Okay. Mr. Murray, I believe you also got22 some questions on changing the application to list --23 I'll call it a generic operator -- just operator.24 Mr. Murray, in your experience preparing25 municipal solid waste permit applications and other

Page 388

1 applications for municipal solid waste authorizations,2 does the Texas Commission on Environmental Quality3 want to know who the entity is that will be operating4 the facility?5 A Yes. They request evidence of competency to6 be included in the permit application.7 Q And I take it from the name of that -- of8 those materials, that material is submitted to9 demonstrate that the operator of the facility is

10 competent to operate the facility. Is that correct?11 A Yes, that's correct.12 Q Mr. Murray, as we went through Parts 1 and 213 of the application and Mr. Dunbar pointed out some14 typos and inconsistencies, I believe there was some15 questions regarding a resolution by Williamson County16 to change the name of the side access road -- that is,17 the road that you use turning off the state highway to18 access the facility -- changing that name to Landfill19 Road. Do you recall those questions?20 A Yes, I do.21 Q And we looked for that resolution in the22 application, and we couldn't find it, could we?23 A No.24 Q Mr. Murray, is that resolution material to25 any portion of the application?

Page 389

1 A No, it's not.2 Q How, if at all, does changing the name of the3 access road -- how, if at all, does that affect your4 traffic analysis in the application?5 A It does not affect it at all.6 Q Mr. Murray, please refer to the document that7 has been marked APP-215, and please review that for8 me.9 A Okay.

10 Q Mr. Murray, does they appear to you to be the11 resolution that you're referring to and, in fact,12 that's referenced specifically in the application13 changing the name of the site access road to Landfill14 Road?15 A Yes, it is.16 MR. MOORE: At this time, applicant17 offers APP-215.18 JUDGE VICKERY: Objections?19 (No response)20 JUDGE VICKERY: APP-215 is admitted.21 (Exhibit No. APP-215 admitted)22 Q (By Mr. Moore) Mr. Murray, I want to keep23 with this topic just for a few more questions. If you24 would, please refer to Page 3 of Exhibit APP-202. So25 that's Page 3 of the large part of the application

Page 390

1 that's going to be in Volume 1.2 A Okay.3 Q And on the form there, regarding Section 20,4 and that would be item or box -- excuse me --5 Section 2, Item or Box 20, Mr. Dunbar I believe6 questioned you as to -- questioned you regarding why7 the box was checked indicating that this form8 contained changes to the regulated entity information.9 Do you recall that?

10 A Yes.11 Q If you'll please turn to Page 4 of Exhibit12 APP-202. Would the change in the name of the13 facilities access road from County Road 128 to14 Landfill Road constitute new information for the15 regulated entity's address?16 A Yes, it would.17 Q Mr. Murray, sticking with this core data18 form, I believe you received some questions from19 Mr. Dunbar focusing on the footer down there, and I20 believe the footer says Page 1 of 3. And correct me21 if I'm wrong, there's only two pages containing the22 application of the core data form?23 A That's correct.24 Q Mr. Murray, have you had an opportunity to go25 on TCEQ's Web site and pull up their core data form?



41 (Pages 391 to 394)

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1 A Yes, I have.2 Q And is that where you would typically go to3 find the core data form for purposes of preparing4 applications?5 A Yes.6 Q Does the core data form that you reviewed on7 TCEQ's Web site, does it require anything after8 Section 4, Line 44, which is on the bottom of Page 49 of the application?

10 A No, it does not.11 Q So, in your opinion, is there any information12 that's missing from the application?13 A No, nothing is missing.14 MR. MOORE: Your Honors, if I could have15 just one minute.16 JUDGE VICKERY: Let's go off the record.17 (Recess from 2:38 p.m. to 2:39 p.m.)18 JUDGE VICKERY: Back on the record,19 please.20 Q (By Mr. Moore) Mr. Murray, I believe you21 were also questioned by counsel for the Executive22 Director regarding the provision of hydrographs that23 were in your HEC-1 modeling but weren't otherwise in24 the application. Do you recall that?25 A Yes, I do.

Page 392

1 Q Mr. Murray, in your experience preparing2 municipal solid waste landfill applications and3 submitting those applications to the TCEQ, have you4 ever been requested to provide hydrograph printouts5 from the HEC-1 modeling?6 A No, I have not.7 Q Were you requested previously by the8 Executive Director of the TCEQ to provide those9 hydrographs for purposes of the application that we're

10 here today to talk about?11 A No, I have not.12 Q Although you didn't provide the hydrographs,13 did you nevertheless provide the requested and14 relevant information from your HEC-1 modeling?15 A Yes. You would use the hydrographs to get16 the peak flow rates, the volumes, the times, and all17 those things are printed out and included in the18 application. And that's -- that's what you would use19 the hydrograph to get that information. And we20 provided that information; therefore, rendering the21 hydrograph -- we don't really need it. We've got the22 information that we would glean from that.23 MR. MOORE: Your Honors, this may be a24 little bit out of turn here, but Mr. Murray will be25 leaving the stand after his time today. We're not

Page 393

1 opposed to bringing in and providing the hydrographs.2 It's just not something that we can do today.3 However, I just don't know that that's really required4 based upon his testimony here today, if that's a5 necessary thing for Your Honors, if you need that to6 review. And if so, please let us know, and we'll7 provide it. Again, it's not just something that8 Mr. Murray has in his briefcase, for instance.9 JUDGE VICKERY: Okay. Yeah, I didn't

10 expect that he had them here today either. Give us11 just a second to chat about it, and maybe we can12 decide later.13 (Recess from 2:41 p.m. to 2:44 p.m.)14 JUDGE VICKERY: Let's go back on the15 record. The question was posed by Mr. Moore about16 whether or not the hydrographs should be produced.17 The ALJs conferred, and basically it's -- the way that18 the ALJs see it is it's really up to the applicant. A19 request was made by Mr. Ekoh in the hopes that it20 would assist the ALJs in making fact findings. And in21 the event that the applicant, who bears the burden of22 proof in this matter, wishes to produce the23 hydrographs, they should also produce a witness who24 will be subject to cross-examination on those25 hydrographs during the rebuttal case. Is that

Page 394

1 accurate?2 MR. MOORE: That's accurate, Your Honor.3 Thank you.4 JUDGE VICKERY: Okay.5 Q (By Mr. Moore) Mr. Murray, Mr. Ekoh, counsel6 for Executive Director, also questioned you and asked7 for -- I think he called it a narrative, if you8 will -- providing a narrative discussion of the9 natural drainage volumes versus the post-development

10 drainage volumes at the landfill site. Do you recall11 that?12 A Yes, I do.13 Q And, Mr. Murray, if you were to provide that14 narrative discussion, would it differ in any way from15 the testimony that you have given here today and16 that's been placed upon the record?17 A No, not at all.18 MR. MOORE: Okay. We have no further19 questions, Your Honor.20 JUDGE VICKERY: All right. Ms. Perales,21 are you ready to go forward?22 MS. PERALES: Sure.23 RECROSS-EXAMINATION24 BY MS. PERALES:25 Q Mr. Murray, let me begin with the



42 (Pages 395 to 398)

Page 395

1 Exhibit APP-214. Now, I understand from your2 testimony that you did not work on preparing the3 application that resulted in this permit. Is that4 correct?5 A That's correct.6 Q Do you know whether the application for this7 permit was prepared at the request of Waste8 Management?9 A I don't know.

10 Q Do you know whether there was any opposition11 to the application that resulted in this permit?12 A I don't know.13 Q I believe you were also questioned about the14 requirement to name the operator of the landfill in15 the application regarding the evidence of competency.16 Is that a fair assessment of what you said?17 A I think the question was more does the TCEQ18 concern itself with who operates the landfill.19 Q Okay.20 A And my answer was yes. One of the things21 they ask for is evidence of competency.22 Q So is it fair to say that this evidence of23 competency is sufficient to advise the TCEQ of the24 identity of the operator?25 A Well, I'd like to look at the exact rule, but

Page 396

1 it's to provide the TCEQ with some evidence that the2 operator has -- is competent to operate the landfill.3 Q Has that been done for this application?4 A Yes, it has.5 Q So do you have any reason to object to the6 removal of Waste Management's name from the face of7 the permit if that were proposed by either the ALJs or8 the TCEQ?9 A The face of what permit?

10 Q Of the draft permit. I'm sorry. 1405B.11 A As site operator?12 Q Right.13 A I don't know that that's really up to me.14 That's going to be something that I guess the TCEQ15 will have to determine --16 Q Okay.17 A -- who the site operator is.18 Q So you would have no reason to object, then,19 if Waste Management's name were removed from the face20 of the permit. Is that correct?21 A No, I don't -- I don't -- I'd say no. Waste22 Management is -- once again, it gets into the23 definition of Waste Management is the operator of the24 site. Is Waste Management the site operator? They25 are certainly listed as the site operator on 1405A.

Page 397

1 Now, is this site operator on the permit for 1405A the2 same as the site operator as defined in the 330 rules?3 I don't know.4 Q But we're talking specifically about 1405B.5 And the evidence of competency already identifies6 Waste Management as the operator of the facility. Is7 that correct?8 A Yes, it does.9 Q And you testified that it's up to the TCEQ

10 and the ALJs as to whether Waste Management's name11 should be on the face of the draft permit or not. Is12 that correct?13 A Yes.14 Q So there's really no reason for you to object15 if that is what the Commissioners or the ALJs16 determine?17 A It's not my place to object to anything the18 ALJs determine.19 Q Okay. There was also a question, I believe20 from Judge Vickery, regarding any limits on the areas21 from which waste may be accepted, and I believe your22 testimony was that you knew of no landfills that had23 such limits in the state of Texas. Is that a fair24 assessment of what you said?25 A Yes.

Page 398

1 Q Do you have there in front of you somewhere2 Exhibit TJFA-5?3 A Okay.4 Q If you could, start from the back of the5 document -- and you'll see the very last page is6 Page 20. It's numbered Page 20. Do you see that?7 A Yes.8 Q Okay. Working from that last page, could you9 turn to Page 9 -- actually, let me have you turn to

10 Page 1 first. Page 1 from the back of the document.11 JUDGE CARD: Is that the one that says12 27 of 137 in the top right corner?13 MS. PERALES: Right. That's right.14 Q (By Ms. Perales) On the top right corner,15 you'll see 27 of Page 137. Do you see that?16 A Yes.17 Q And what does it say at the top of this18 document? What is it entitled?19 A "Reference Volume 26, page 929, Motion20 Regarding Landfill Contract, Volume 27, Page 137,21 Williamson County Landfill Operation Agreement."22 Q And what is the date of this agreement?23 A The 6th day of May, 1985.24 Q And who are the parties that are identified25 in that first paragraph in the agreement?



43 (Pages 399 to 402)

Page 399

1 A Williamson County, Texas, hereinafter called2 "County," and R.E. Wolfe Enterprises, Inc.3 Q Hereinafter called "Contractor." Is that4 correct?5 A Yes.6 Q Now, starting from that page, could you turn7 to Page 9?8 A (Witness complies)9 Q Do you see the section that's entitled

10 "Restrictions on Acceptance of Waste"?11 A Yes, I do.12 Q Could you read the sentence following the13 No. 1, underneath that heading?14 A "Contractor will not accept refuse from15 outside Williamson County."16 Q What is your understanding of that sentence?17 A That the contractor will not allow waste that18 is outside -- that is generated from outside19 Williamson County.20 Q So would it be fair to say that under this21 agreement, the landfill would accept waste only from22 Williamson County?23 A I would have to review this entire document.24 According to that one -- according to that one bullet25 point, it would appear that way, but I have not

Page 400

1 reviewed this entire document.2 Q Okay.3 A And this is a 1985 agreement with some4 contractor I'm not aware of.5 Q Okay. But from your reading of that one6 sentence, doesn't it appear that the waste is only7 allowed to come from Williamson County?8 A I mean, it certainly appears that way. But9 once again, I haven't read this document. As far as I

10 know, we could have shifted in between Pages 1 and 911 and be talking about something completely different.12 Q Okay. I'm going to turn my attention now to13 the site operating plan, that portion of the14 application which begins on Page 2491 of Exhibit15 APP-202. Can you find that document, please?16 A Okay.17 Q Now, there's been some discussion of the18 24-hour, seven-day-a-week proposed operating hours.19 And I believe it was your testimony that this would20 allow some flexibility so that the landfill could21 accept waste perhaps, you know, in the middle of the22 night. Is that correct?23 A Yes, that's correct.24 Q Could you turn to Page 2513 of25 Exhibit APP-202?

Page 401

1 A Okay.2 Q At the bottom there, do you see the paragraph3 that is entitled "Fire Protection Standards Under4 4.4.1"?5 A Yes.6 Q And underneath that fire protection7 standards, it lists several steps that should be8 followed by landfill personnel to minimize potential9 for fires. Is that accurate?

10 A Yes.11 Q Could you turn to the following page, please?12 A Yes.13 Q At the top of the page, what is -- could you14 read that top line that begins with "landfill15 equipment"?16 A "Landfill equipment does not remain in the17 active area of the site overnight."18 Q And that's one of the steps that should be19 followed by landfill personnel to minimize potential20 for fires. Is that correct?21 A Yes.22 Q If the site is accepting waste 24 hours a23 day, seven days a week, is it possible that landfill24 equipment may remain in the active area of the site25 overnight?

Page 402

1 A Well, this sentence is referring to landfill2 equipment that would be left at the working face3 overnight -- an inactive working face. I think "does4 not remain" clearly implies that. And so this is5 talking about leaving -- leaving landfill equipment at6 the working face overnight, as opposed to landfill7 equipment working overnight.8 Q Well, doesn't it say "active area of the site9 overnight"?

10 A The active area generally refers to the open11 face, the area where waste disposal is taking place.12 Q So doesn't that mean that there will be13 landfill equipment in the active area overnight?14 A Yes. Not to mince words, but it won't be15 remaining in the active area.16 Q So you're drawing a distinction between17 "remaining" and "operating"?18 A Yes. It will -- we don't say, "Landfill19 equipment will not be in the active area overnight."20 We say, "will not remain in the active area21 overnight." Should it close and not be operating,22 then the landfill equipment will be moved away from23 the active area.24 Q Okay. So then are you suggesting that so25 long as the landfill equipment is being operated in



44 (Pages 403 to 406)

Page 403

1 the active area of the site overnight, there will not2 be a potential for fire?3 A No. But that's different. If it's being4 operated, there will be an operator there to detect a5 possible fire.6 Q Okay. If you look down to the sixth bullet7 point, which is the last bullet point in that section,8 could you read that sentence, please?9 A Yes. "The potential for fire shall be

10 minimized by the use of cover soils and caution when11 using equipment capable of sparking or creating12 fires."13 Q Is it your understanding that this landfill14 may use alternative daily cover?15 A They may, with the TCEQ's specified approval16 process with the -- with the approval of this permit,17 they do not receive permission to use alternate daily18 cover. In order -- with this permit, they receive19 permission to request permission to use alternate20 daily cover.21 Q Do you know if they're using alternate daily22 cover now?23 A I reviewed their cover logs for the last two24 years. I found one instance when they used it and25 three more when they might have used alternate daily

Page 404

1 cover. So they don't use it hardly at all. In fact,2 based on what I saw, it seems like it was more of an3 experiment.4 Q And so your understanding of this application5 is that should this permit amendment 1405B be6 granted, that Williamson County will not be7 automatically authorized to use alternative daily8 cover?9 A No, they won't be. They have to go through a

10 separate TCEQ process for alternate daily cover. That11 doesn't necessarily approve them to use alternate12 daily cover, although, they are now approved to use13 alternate daily cover.14 Q Do you have the rules there in front of you,15 the 330 rules?16 A No, ma'am.17 Q Could you please turn to Rule 330.115?18 A Okay.19 Q And do you see the second column there on20 Page 2275?21 A Yes.22 Q Could you please read the sentence that23 begins, at the very top, "For any municipal solid24 waste"?25 A "For any municipal solid waste activity on a

Page 405

1 landfill that stores or processes combustible2 materials such as solidification basins, brush3 collection areas, construction waste and demolition4 waste, composting areas, mulching areas, shredding5 areas, and used oil storage areas, the site operating6 plan must address fire protection measures specific to7 each individual activity."8 Q Could you tell me if there are any -- if9 there is more than one solid waste activity that's

10 proposed in the application for 1405B?11 A Yes, there are.12 Q How many activities that you know of are13 proposed in 1405B?14 A There's the regular disposal of solid15 waste -- well, let's -- Page 2519, Section 4.6,16 unloading of waste, describes a different -- the17 different solid waste procedures that can go on at the18 site in a different working faces areas where waste19 can be unloaded. We state there that there may be as20 many as three types of unloading areas, including21 municipal solid waste, which would be unloaded at the22 active working face, one or two working faces --23 brush, which will be unloaded at the brush storage24 area, and liquid waste will be unloaded at the liquid25 stabilization processing area.

Page 406

1 Q So it looks like there may be three unloading2 areas, and among those three, there may be as many as3 two active working faces for municipal solid waste.4 Is that correct?5 A Yes.6 Q Have you proposed in this site operating plan7 fire protection measures specific to each of these8 individual activities?9 A We do have fire protection plans that cover

10 the various -- the various types of working faces, and11 then these working faces all comply with the brush12 storage areas similar to the MSW area.13 Q Well, could you point me, then, to the14 specific fire protection measures for each of the15 individual activities?16 A (No response)17 Q I mean, let's begin with brush -- the brush18 storage area. Is there a fire protection measure19 specific to that storage area?20 A There's not one specific to it. There is one21 specific to large -- large working faces. If a fire22 is in the working face -- and we've got the brush23 storage working face or the MSW working face. And so24 this goes to -- the fire protection measures specific25 to that go to the working face that's on the bullet



45 (Pages 407 to 410)

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1 point on Page 2515.2 Q But that doesn't specifically address --3 A It doesn't say "brush."4 Q Right.5 A But it says "working face."6 Q So it doesn't address an individual activity.7 Is that correct?8 A An individual activity? I guess it9 doesn't -- it doesn't specifically say "the brush

10 storage area."11 Q Are there any areas in the site operating12 plan or any parts of the site operating plan that13 discuss specific fire protection measures for the14 liquid stabilization processing area?15 A Well, the small -- we have small fires,16 equipment fires, hot loads, and then we have the17 working faces. And the fire at the liquid18 stabilization area would fall in -- into one of those.19 You're not going to get a fire in the liquid20 stabilization area necessarily because, well, it's21 liquid. So, if you have a small fire that occurs22 there, we've got the measures for how to address that.23 If you have an equipment fire as a24 result of -- that occurs at the liquid stabilization25 area, then we have the measures that address that. If

Page 408

1 you should have a hot load, we've got the measures to2 address that. And if we have a fire at the working3 face liquid stabilization basin, then we've got the4 measures to address that.5 Q So you have general measures proposed in here6 that you are saying would have to apply to each of7 these individual activities. Is that correct?8 A That's correct.9 Q And just so I'm clear about the alternative

10 daily cover, could you turn to Page 2561 of11 Exhibit APP-202?12 A Yes, ma'am.13 Q Could you read the very first sentence at the14 top of that page?15 A "The use of an ADC may be allowed by a16 temporary authorization under 30 TAC 305.70(m) on a17 six-month trial basis. Additionally, one extension of18 up to six months may be granted."19 Q That's fine. So are you saying, then, that20 if 1405B is granted, this six-month temporary21 authorization is not automatically implemented?22 A No, it's not at all. You have to request it.23 Q Okay. So there would be a separate24 application submitted to the TCEQ before alternative25 daily cover could be used for a six-month trial

Page 409

1 period?2 A Yes. I believe it's actually a permit3 modification request.4 Q A permit modification, does that -- could you5 explain what kind of process that entails, if you6 know?7 A You would have to submit it to the TCEQ, your8 request and any revisions to your site operating plan9 or your alternate daily cover plan. It would get

10 reviewed by the TCEQ and then either commented on,11 denied, or approved, depending on what they came to12 based on what you submitted. Off the top of my head,13 I don't recall if it's a notice modification or not.14 Q Do you know off the top of your head, then,15 whether there's any opportunity for a hearing, such as16 the one we're at today?17 A No, there's no opportunity for a hearing.18 Q Okay. Thank you. Actually, staying on that19 part of the site operating plan, could you turn to20 Page 2562?21 A Yes, ma'am.22 Q Do you see in the middle of the page there23 under -- under the paragraph "Discussing commercial24 phone products" -- do you see the paragraph that25 begins, "In the event of a waste fire"?

Page 410

1 A Yes, ma'am.2 Q And the second sentence says, "ADC, or3 alternative daily cover, materials will not be used in4 the area of a waste fire until the fire has been5 completely controlled." And then it goes on to say,6 "If ADC material is present when a waste fire begins,7 the ADC material will either be removed or smothered8 with soil."9 Could you explain to me why these

10 sentences are necessary? In other words, why is it11 important to keep ADC materials away from a waste12 fire?13 A Well, we're not saying we have to keep it14 away from a waste fire. We're saying we won't use it15 in the area of a waste fire, that ADC materials will16 not be used, say, to cover a fire.17 Q Okay. And then if there are ADC materials,18 they'll have to be removed or smothered with soil?19 That's right?20 A Yes. If there are ADC materials there and21 there's a fire, well, if they're not on fire and they22 can be safely removed, they'll be removed. If not,23 they'll be buried.24 Q And is that because the alternative daily25 cover materials don't provide the same fire retarding



46 (Pages 411 to 414)

Page 411

1 properties of cover soils?2 A They provide fire retarding properties. And3 in order to be able to use them, as we described, they4 have to -- they have to -- to provide for the same5 functions as soil daily cover does. But that said,6 just -- just because we shouldn't cover a fire with a7 tarp doesn't mean it can't control fires if it's8 properly placed and used. But -- but if there is a9 fire, you don't want to be throwing the tarp on there.

10 Q And among the fire protection standards that11 we talked about earlier that began on Page 2513 and12 which included use of cover soils, there is no13 provision that suggests use of alternative daily cover14 as a means to -- to minimize the potential for fires.15 Is that right?16 A There's no discussion on using alternative17 daily cover to -- to put out fires.18 Q Do you know if there's a recycling facility19 at this landfill?20 A Yes, there is.21 Q I noticed it's not included in this22 application. Is that because it's covered by a23 separate permit?24 A Yes. You don't need a permit for a recycling25 facility. However, it is shown on the figures in

Page 412

1 Part 3, Attachment 1, the -- particularly2 Figure 3-1.1 -- I think it's also in some other3 figures in Attachment 1, but I know for a fact it's on4 that figure.5 Q Do you know whether it should be included in6 the discussion of fire protection measures in the site7 operating plan?8 A No.9 JUDGE CARD: Meaning that you don't know

10 or it should not?11 A I don't believe it's covered in the12 regulations, although, the fire protection plan, the13 way it's set up, would cover those issues.14 Q (By Ms. Perales) If this facility is allowed15 to operate 24 hours a day, seven days a week as16 proposed in this application, are you aware of any17 alternatives to the back-up beepers that are usually18 associated with heavy equipment that will be used at19 this facility?20 A No, I'm not. You'd probably have to contact21 OSHA.22 Q Do you know if there are any facilities that23 currently use heavy equipment that has some24 alternative to back-up beepers?25 A Not that I'm aware of.

Page 413

1 Q You're not familiar with any. Is that2 correct?3 A No, ma'am.4 Q Do you know, if the facility is operated 245 hours a day, seven days a week, will there -- will it6 be illuminated at night?7 A The working face would be illuminated at8 least by the headlights of the garbage vehicles.9 Q Okay.

10 A At a minimum.11 Q And could you explain to me, if the facility12 is operated 24 hours a day, seven days a week, at what13 point is daily cover applied?14 A It has to be applied at least once a day.15 Q But when, typically?16 A That is up to the site manager, but they have17 to apply daily cover once a day.18 Q So, if I were to look through the site19 operating plan, I wouldn't be able to determine when,20 during the day, daily cover should be applied. Is21 that right?22 A No. Just that it has to be applied once23 every 24 hours. It has to be applied daily or, at a24 minimum, once every 24 hours if the site is operated25 continuously.

Page 414

1 Q Could you please turn now to Page 257 -- this2 is strange -- 2573? I'm sorry. 2572.3 A Yes.4 Q And this appears to me to be a handling plan5 for regulated asbestos-containing materials. Is that6 right?7 A That's right.8 Q So, if you turn to Page 2576 with me and look9 at Section 3, Place of Unloading B -- have you found

10 that?11 A Yes, I have.12 Q That first sentence says, "RACM is to be13 placed in a disposal area separate from but possibly14 immediately adjacent to the active working face."15 Does that mean if RACM is disposed of,16 that there would be more than one working face?17 A Well, for the very limited amount of time18 that the asbestos is being disposed of, yes. The19 asbestos is disposed of by digging a hole and burying20 it and covering it back up.21 Q Is there a reason that it must be disposed of22 separate from the active working face? Is there a23 particular reason?24 A Yes. There's health concerns with the25 asbestos.



47 (Pages 415 to 418)

Page 415

1 Q Would you turn to the top of Page 2577?2 A (Witness complies)3 Q Do you see the sentence that begins with "as4 an alternative" at the top of that page?5 A Yes.6 Q And it says, "As an alternative, a dozer or7 compacter may cut into the refuse working face, which8 is deep enough to contain the volume of RACM9 anticipated."

10 Could you explain how -- why that would11 be allowed -- why the RACM would be -- could be placed12 in the refuse working face as an alternative when you13 earlier explained that there were safety concerns with14 placing it in the working face?15 A Yes. Well, it would be placed in the working16 face, so it would be cut -- a cut deep enough to17 contain the volume of the asbestos material would be18 cut into the working face, and it would be covered.19 Q So it would be kind of separated or --20 A Yes.21 Q I'm just trying to understand how it would22 work.23 A Yes. A cut -- a special cut would be cut24 into the working face, and the asbestos would be25 placed in there, and it would be covered.

Page 416

1 Q Do you see on Page 2577, Subsection C, where2 it says, "Below natural grade fill areas replacement3 of RACM are preferred"? Do you see that?4 A Yes.5 Q Could you explain to me the purpose for6 placing RACM below natural grade fill areas?7 A It's -- there's just less wind and -- it's8 just a better overall location, to place it below9 grade.

10 Q Okay. But if it's placed in the refuse11 working face, it does not need to go below grade. Is12 that right? If you look at the sentence just above13 that.14 A No. The sentence above that is just15 saying that -- when that statement says, "which is16 deep enough to contain the volume of RACM17 anticipated," then when it says, in parentheses, "This18 does not necessarily mean going below grade," meaning19 that you're not necessarily trying to dig a hole to20 get below grade, which is different than the statement21 on C, which is below natural grade fill areas. It's22 talking about two different things there. You're not23 necessarily having to dig a hole down. You may be24 digging a hole into the side.25 Q Okay. When you say dig into the side, you

Page 417

1 mean when you're digging into the refuse working face?2 A Yes.3 MS. PERALES: Can I have just a minute4 to go over my notes?5 JUDGE CARD: Sure.6 MS. PERALES: I might be done in a7 second. Okay. I have just a couple more questions.8 Q (By Ms. Perales) I believe earlier --9 perhaps yesterday -- when you were testifying in

10 response to some questions from Mr. Dunbar regarding11 the information included in the land use portion of12 the application, you mentioned that in determining the13 number of residences in the area, that there was a14 field survey conducted. Do you recall that?15 A Yes.16 Q Did you personally conduct that field survey?17 A No, I did not. I had somebody on my staff go18 out and do that.19 Q And you also testified that -- I believe --20 and correct me if I'm wrong -- that in order to21 determine the use of some of the water wells in the22 area, someone kind of looked at the wells to see if23 they could be used for domestic purposes. Is that24 correct?25 A Yes. Somebody looked at all the wells, and

Page 418

1 none of the 1,800 recorded wells that we found in our2 investigation had any appearance of being used for3 domestic purposes. Say a waterline headed towards a4 house would have been at least an appearance of use5 for domestic purposes. These are all unrecorded6 wells. It would be unknown how deep any of these are,7 but --8 Q And my question -- I'm sorry. My question to9 you is did you personally go out to look at any of

10 those wells?11 A No, I did not.12 Q So somebody under your supervision did?13 A Yes.14 Q And reported back to you?15 A That's correct.16 Q And you didn't verify any of that17 information. Is that correct?18 A No.19 Q So it's not within your personal knowledge.20 Is that correct?21 A It was done under my direct supervision.22 Q Okay. And I believe you testified in23 response to one of my questions yesterday that you're24 not a land use expert. Correct?25 A No, not --



48 (Pages 419 to 422)

Page 419

1 MR. MOORE: Objection. I'm sorry. I2 didn't mean to interrupt. We're going way far afield3 from the scope of the redirect here. We're going back4 to her own questions yesterday.5 MS. PERALES: Well, I can withdraw that6 one.7 MR. MOORE: I mean, I left some latitude8 here with Mr. Dunbar's questions when she followed up9 on those. But to follow up on your own questions that

10 haven't even been the subject of redirect is a little11 bit too much.12 MS. PERALES: I can withdraw that --13 well, I think he already answered it, but I can move14 on.15 JUDGE VICKERY: Well, to the extent that16 he's answered it, the answer stands. So the objection17 is overruled to that extent that he's answered it. To18 the extent that he hasn't, it's sustained.19 Q (By Ms. Perales) I have just one more20 question for my own clarification. You testified21 earlier today that initially only Parts 1 and 2 of the22 application were submitted to the TCEQ. Is that23 correct?24 A Yes, ma'am.25 Q So, initially, the land use compatibility

Page 420

1 portion of the application was submitted to the TCEQ2 before any of the other technical aspects. Is that3 correct?4 A Yes. Parts 1 and 2 were assembled and5 submitted to the TCEQ, and Parts 3 and 4 were later6 developed.7 Q Do you know whether -- when you initially8 submitted Parts 1 and 2, whether it was your9 applicant's intention to participate in a hearing that

10 was limited only to Parts 1 and 2? In other words, do11 you know whether, at the time that you submitted those12 two parts of the application, you anticipated a land13 use only hearing?14 A I don't know that we anticipated a hearing or15 not.16 Q Okay. But that's something that might17 typically be done. Isn't that right?18 A The hearing, if it was opposed and a hearing19 requested and whatnot, that -- then, yes, that would20 have been what happened.21 MS. PERALES: I'll pass the witness.22 Thank you.23 JUDGE VICKERY: Mr. Evans, are you24 ready?25 MR. EVANS: Thank you. Yes.

Page 421

1 RECROSS-EXAMINATION2 BY MR. EVANS:3 Q My question relates to the -- based somewhat4 on the statement you made about the bifurcated5 approach and some of the data you had it in, as well6 as on Judge Vickery's question about the 3 percent.7 APP-202, Page 28, the last paragraph -- the last8 paragraph APP-202, Page 28. I have a question about9 the last paragraph. It's -- I'm finding it a little

10 ambiguous, and I'm wondering if you can clear it up11 for me, please. If you don't mind, I'll read it far12 enough that you'll know what I'm concerned about.13 It says, "TxDOT estimates the traffic14 volumes in the vicinity of the landfill will increase15 at a" -- am I correct in assuming that the word16 "average" is the appropriate word to insert there --17 I'm sorry. Correct my English -- "an average"?18 A Well, we can look at the information that19 TxDOT gave us and see exactly what it says.20 Q So the fact that you're looking causes me21 some concern.22 A Oh, I was just trying to be accurate.23 Q All right.24 A The TxDOT instructions say add 3 percent per25 year.

Page 422

1 Q So it does not indicate that that is an2 average over a certain number of years?3 A No, sir.4 Q You would agree that, then, the statement5 "add 3 percent a year" is a cumulative average of 36 percent?7 A I would say it's an annual average of 38 percent. I don't know that I'd say cumulative.9 Q Let me give an example to see if we're on the

10 same page on averaging 3 percent. If I have a11 classroom with 100 students in it -- well, let's take12 the road. 1660, there are 100 cars on it -- the13 average number of cars is 100 cars per day this year.14 If I add 3 percent to that, what will it be next year?15 A 103.16 Q And if I add 3 percent to that the next year,17 what will it be?18 A It will be getting closer to 107.19 Q All right. Then we are on the same page.20 We're talking about a cumulative average, then.21 That's what I supposed this meant, but I wanted to be22 certain. I don't know if you're aware -- I have23 followed your work on this traffic since the first --24 A Yes, sir, I know.25 Q You're aware? All right. I do have some



49 (Pages 423 to 426)

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1 data, having done that, that anytime a theory or a2 long-term prediction or an average -- because it3 causes me some concern when I find it disagrees with a4 data observation. And I am aware that an average is a5 measure of central tendency, and it does tend to6 smooth out data, eliminating the highs and lows and7 producing it all as a rather smooth line.8 You did, however, in the bifurcated --9 the first issue of this -- which you used a traffic

10 count of 1999, which I objected to, and TxDOT agreed11 with me it was outdated. You have a traffic count on12 FM 1660 south was said to be 1,150 per day.13 A I'm sorry. Is that in the --14 Q That's in the original document.15 MR. MOORE: Judge, I think we're talking16 about a document that's not in evidence.17 MR. EVANS: No. But I am questioning --18 I am questioning the numbers of -- I'd like to have19 him explain how we can -- how 3 percent plays into20 this. And, you know, I will drop it and take another21 route if it would be better.22 JUDGE VICKERY: No. I don't think you23 should do that. I think we should identify which24 document you're talking about.25 MR. EVANS: Yes.

Page 424

1 JUDGE VICKERY: And let me just go over2 it real quick. If you've got a document, you should3 at least share it with the witness so that they can --4 you can both be looking at the same document.5 Now, your objection is this is a6 document that's not even admitted?7 MR. MOORE: Judge, it wasn't much -- not8 necessarily an objection. I wanted some clarification9 what we were talking about, and the witness was asked

10 about numbers that are in a document somewhere that11 aren't even before Your Honors or before us.12 JUDGE VICKERY: Right.13 MR. EVANS: And I'm sorry. I don't have14 the document. I have the data, because I did object15 to it in a public meeting. But I do not have the16 document with me today, so I'll --17 JUDGE VICKERY: Let's do this. Are you18 familiar, Mr. Murray, with what it is that Dr. Evans19 is referring to?20 A I think he's referring to some traffic21 studies that we did with -- as I explained earlier, we22 originally submitted Parts 1 and 2 as part of a land23 use application, and that has subsequently been24 removed and then replaced and updated with all this.25 And I think he's talking about traffic data that was

Page 425

1 included in that.2 JUDGE VICKERY: In the original?3 A In the very original, yes.4 JUDGE VICKERY: Is that accurate?5 MR. EVANS: That's correct.6 JUDGE VICKERY: Okay. And so as long as7 you know what it is that Dr. Evans is talking about,8 let's see if we can develop the testimony on it.9 MR. EVANS: Okay. It will not take

10 long, I think.11 JUDGE VICKERY: Sure.12 Q (By Mr. Evans) In that document, it was13 based on a 1999 traffic count south of the site. The14 traffic per day was said to be 1,150 vehicles. In the15 traffic count in the current document, the traffic16 count is 1,752 -- I'm sorry -- 1,750 vehicles. That's17 an increase of 52 percent over four years, or an18 average increase of 14 percent. And this is why I19 find the 3 percent a bit bothersome to me. And those20 are your -- those are your numbers, not mine.21 A All I know is that the traffic count numbers22 that we have in here we got from TxDOT.23 JUDGE CARD: "In here" being the24 application?25 A Yes. I'm sorry. In the application. We did

Page 426

1 provide numbers from TxDOT for the initial land use2 application, but I have to admit it's been many years3 since I had anything to do with that. Ever since we4 pulled it out and put it back in, I don't really5 remember what those numbers are. And I can't say, now6 that I have an explanation for the jump in traffic at7 that point except to possibly look at the addition of8 the tracking of subdivisions and additional houses out9 that way. But I haven't been asked to look at it, and

10 I haven't looked at it, so I don't really have an11 opinion at this point.12 Q (By Mr. Evans) Well, then I'm sorry for13 putting you on the spot, because I am very much14 concerned about the requirement of the -- that the15 growth trends in the nearest community be considered.16 And one of the things I have been concerned with over17 a long period of time is that in groupings together of18 certain statistics and of averages and sometimes19 averages of averages, that I -- I'm afraid that some20 of the information that should be available is not21 available or is put together in such a way that it's22 very difficult to interpret it.23 Now, if the -- and I think I could24 explain, but I wouldn't -- I mean, I can understand25 how you might get these numbers, and I think the way



50 (Pages 427 to 430)

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1 in which they are arrived at are subject to2 examination. But then I'd be doing your job. I don't3 want to do that. I'd send you a bill again.4 Along this line, I do have a question5 about the land use analysis in the document, and I --6 I would delay this if the applicant is going to7 present the work of John Worrall as testimony. I8 believe you have sent this forward. And he appears to9 be a specialist on land use.

10 MR. MOORE: May I, Your Honor?11 JUDGE VICKERY: Yes.12 MR. MOORE: Mr. Worrall, W-O-R-R-A-L-L,13 was one of the potential rebuttal witnesses that we14 disclosed, along with a draft expert report from15 Mr. Worrall. We have not made a decision yet as to16 whether we're going to put Mr. Worrall on the stand.17 So, if the Dr. Evans has a question, I would certainly18 recommend that he ask it now and not wait, in case19 that question may not get answered.20 JUDGE VICKERY: I agree. So, Dr. Evans,21 go ahead and ask your question.22 MR. EVANS: May I approach?23 JUDGE VICKERY: Yes.24 Q (By Mr. Evans) This is not his entire25 document. His entire document consists of several

Page 428

1 pages out of the Hutto business update, but these are2 the ones that are relevant. It begins with the3 statement of the Texas Administrative Code, Title 3,4 Part 1, Chapter 330, Subchapter E, Rule 330.53, land5 use.6 In brevity, the item I am concerned7 about is the impact of the site upon city, dot, dot,8 dot, community growth patterns. And that's the item9 I'm interested in.

10 He also says A, B -- and he gives four11 subsets, A, B, C, and D. Item C is the one I'm12 interested in. It's growth trends of the nearest13 community with directions of major development.14 MR. EVANS: I do have a couple of more15 copies if it would help you, Judge.16 JUDGE VICKERY: I wouldn't mind --17 JUDGE CARD: At least one, and we can18 share it.19 JUDGE VICKERY: -- having a copy so we20 can look at it, but I think really the most important21 thing -- we would like a copy, but just focus in on22 the question.23 MR. EVANS: All right.24 Q (By Mr. Evans) A growth rate of 3.4 percent25 has been specified over a period of 20 years for

Page 429

1 Williamson County. And this is perhaps argumentative,2 and perhaps it should be saved -- I'll depend on the3 Judge to give me instructions on that.4 Williamson County -- pardon my artwork.5 Williamson County, 3.4 over 20 years. According to6 CAPCOG, it's about 7.6 over five years.7 MR. MOORE: Judge, it's difficult for8 me --9 MR. EVANS: I have CAMPO's record also,

10 if you'd like.11 MR. MOORE: -- but I've got to do my job12 here. This is testimony, plain and simple --13 MR. EVANS: All right.14 MR. MOORE: -- not from the witness, but15 from one of the parties in the case. I have to16 object. It's just not permissible.17 JUDGE VICKERY: Okay. Dr. Evans -- and18 you will have an opportunity to testify.19 MR. EVANS: Yes. I understand.20 JUDGE VICKERY: What would really be21 helpful is if you could just ask the witness22 questions. Like I said, it's an unusual way to carry23 on a conversation.24 MR. EVANS: I agree.25 JUDGE VICKERY: But it really is a

Page 430

1 question and answer format.2 MR. EVANS: All right.3 JUDGE VICKERY: And like I said, you4 have an opportunity to testify --5 MR. EVANS: Then let me just ask the6 question this way.7 Q (By Mr. Evans) I'll just take any number,8 although this is the school growth number.9 Is it appropriate to use this number to

10 group together and use as a measure of this number11 even though it is a measure of the central tendency?12 Do you think that's appropriate? Is there a better13 way to do it?14 A I guess the -- my answer would be I don't15 know what you are trying -- what you're trying to do16 with that number. If you want to know what the17 percentage is inside your small circle, then you look18 at the percentage inside your small circle. If you19 want to look at what's inside your large circle, then20 you look at what's inside your large circle.21 Q That's a good answer, because I think that --22 then that brings me to this statement. In other23 words, you're saying the numbers inside the small24 circle should be used as a measure of growth trends of25 the nearest community and directions of growth?



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1 A No. No, no, no. That's not what I was --2 Q I'm sorry.3 A We were talking circles here. So I was4 talking your small circle.5 Q Okay. So you're saying this has nothing to6 do with this?7 A Is the small circle Hutto?8 Q Yeah. That's what I said. This is Hutto,9 and this is Williamson County.

10 A What I will say is that we didn't look11 specifically at Hutto. We looked at the surrounding12 communities, which is what the rule requires. The13 rule also requires growth trends of the nearest14 community with directions of major development, and15 that we do say. We do say the growth trends in Hutto16 and the directions of major development.17 MR. EVANS: Then perhaps I should save18 this for my own testimony. Would that be appropriate?19 JUDGE VICKERY: This is difficult to20 explain, but -- at least for me to explain. But you21 can -- you can ask questions, which -- you can ask22 whether or not the witness agrees with your23 characterization of something.24 MR. EVANS: Okay.25 JUDGE VICKERY: And then you can build

Page 432

1 off of that, but it also depends on what Mr. Murray2 says, you know. If he has no knowledge of a3 particular event, then you can't really question him4 about it. But you can ask him about your5 characterizations and then build off of that. And, in6 that way, it may either contradict or agree with your7 testimony.8 JUDGE CARD: And as far as your9 testimony goes that you'll be doing later, you'll be

10 limited to what's already been filed. So you won't be11 able to add stuff.12 JUDGE VICKERY: You'll be -- what will13 happen with you is what has happened with every other14 witness, which is they've -- you've already provided15 your direct, your story, and then you get16 cross-examined, and there may be some other avenues17 that are opened up as a result of cross, or maybe not,18 but --19 MR. EVANS: I have raised the issue, but20 I have not had this data, because this is new data --21 fairly recent data.22 JUDGE VICKERY: Okay. Well, you're23 entitled to ask questions. That doesn't mean that I24 won't receive an objection from some party, but you25 are entitled to ask questions, Dr. Evans.

Page 433

1 MR. EVANS: And I appreciate your2 indulgence. Thank you.3 Q (By Mr. Evans) And I really am not certain4 what to ask. When you used growth trends in the5 nearest community, what kind of number did you use?6 A We didn't use a number in the nearest7 community. We talked about what the growth was like8 and the directions of the growth.9 Q So growth trends does not mean, to you, some

10 sort of a numerical representation?11 A I don't think it implies that, necessarily,12 to me.13 Q I think you dealt with directions only.14 A Yes. Well, we talked about the directions15 that -- that growth was occurring in Hutto.16 Q I agree that's what you said -- that that's17 in your document, yes.18 So there is no specification in the19 document of any percentage of growth?20 A No. There's many percentages of growth in21 the document, just not for Hutto itself.22 Q Yes. In other words, there is no numerical23 recommendation of growth trends for the community?24 A For Hutto?25 Q The Hutto community, yes.

Page 434

1 A I would say the City of Hutto.2 Q Okay. Well, that will be fine.3 A Yes.4 Q That's -- so then let me be sure I5 understand. In the document, there is no mention of6 growth trends for the City of Hutto except for the7 direction?8 A Yes. We do discuss the direction --9 Q Thank you.

10 A -- and trends. We do not include any -- any11 numbers for the City of Hutto.12 Q That's my interpretation also. Thank you.13 MR. EVANS: Thank you, Judge.14 JUDGE VICKERY: There is nothing15 further, Dr. Evans?16 MR. EVANS: Sir?17 JUDGE VICKERY: There's nothing further?18 MR. EVANS: No.19 JUDGE VICKERY: All right. Thank you20 very much. Ms. Fox?21 MS. FOX: Yes.22 RECROSS-EXAMINATION23 BY MS. FOX:24 Q Mr. Murray, good afternoon. I'm Carol Fox25 with -- a board member of Jonah Water SUD.



52 (Pages 435 to 438)

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1 A Yes.2 Q Yesterday you testified that Waste Management3 prepared this application, 1405B, and that Williamson4 County was involved only in reviewing. Is that5 correct?6 A Well, Waste Management didn't prepare the7 application. We prepared the application with the8 coordination of Waste Management and Williamson9 County.

10 Williamson County was involved. Their11 primary involvement was review of drafts in the -- in12 the process of developing it. However, they were13 involved in meetings early on and occasionally during14 the preparation as -- you know, as we described,15 because this process started off one way and switched16 after two years to another way. They were very17 involved in all those decisions.18 Q Okay. And so you would say that they19 certainly did review it, in addition to being involved20 in the preparation?21 A Yes. We submitted it to them for their22 review. How much their review was, I don't know. We23 did receive some comments from it --24 Q All right. My next question is, actually, do25 you know who from Williamson County reviewed that

Page 436

1 application, the final review of it?2 A No. I'm not sure I could tell you a specific3 person. I know we received comments from Commissioner4 Zimmer and people in his office, Dwight Pittman and5 the County Engineering Office.6 Who was tasked with what in the review7 of it on the part of the County, I don't know. It was8 also submitted to the County Judge.9 Q Let me see if I have that clear. What you're

10 saying is that you got feedback from people, but you11 can't say who did a final review of the final thing --12 A Yes, ma'am.13 Q -- specifically?14 A No, I don't know.15 Q Okay. Can you be sure that Williamson16 County, then, actually read and reviewed Waste17 Management's additional applicant statement signed by18 Steve Jacobs?19 A I can't testify that they actually saw it,20 but there's -- that document that's signed by21 Mr. Jacobs was submitted multiple times and was in the22 application multiple times. So how much anybody at23 the County knew about it, I don't know, but it was24 very much there. And every time we went to get the25 County Judge's signature on a new application, we also

Page 437

1 got Mr. Jacob's signature.2 Q Thank you. Then the next thing is -- I felt3 that I had finally gotten things straight with the4 definition, but this afternoon, when you were speaking5 an answer to Mr. Ekoh, some of his questions about the6 confusion over the two applicants, the double7 applicants, there were a couple of statements -- I8 don't have, of course, the record right in front of9 me, but I think you said something about Williamson

10 County being the permit holder, to the extent to which11 they are. I'm not -- I got confused on that part.12 Perhaps that can't be clarified without looking at the13 transcript. I can pass over that if that -- if you14 don't have any memory of it.15 A Do you -- I guess your question is is16 Williamson County the permit holder?17 Q Well, I thought that was clear, that they18 were. And so, when you said to the extent to which19 they were, it indicated there were degrees.20 A Okay. No. I believe they're the permit21 holder.22 Q Okay. Then the -- the confusion that's23 arisen with this APP-214 from the then TNRCC obviously24 has contributed to my confusion -- and I presume25 everyone's confusion -- by not requiring adherence to

Page 438

1 their own perfectly clear definition of what a site2 operator is. So there's a real conflict between this3 definition of site operator and what I assume is Waste4 Management's role on this '95 document. So my5 question --6 MR. MOORE: Judge --7 MS. FOX: I beg your pardon?8 MR. MOORE: Again, I'm in a difficult9 spot here, but I'm going to have to object to the

10 continuing testimony into the record by parties in11 this case and not witnesses.12 MS. FOX: I was leading up to a13 question.14 JUDGE VICKERY: It's a sound objection.15 It's overruled. She's right at the question. It is a16 sound objection, but I'm going to overrule it. Please17 go ahead with the question.18 MS. FOX: Thank you very much.19 Q (By Ms. Fox) My question is just simply do20 you agree that now is the time -- the opportunity to21 clarify this confusion by removing Waste Management's22 name from the permit?23 A I really don't have any opinion on that as24 far as when the time is right to do anything in these25 proceedings. This is more in the bailiwick of the



53 (Pages 439 to 442)

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1 Judges and the TCEQ. When is the right time to do2 these is outside of my engineering experience in3 preparing these kind of applications.4 MS. FOX: Okay. Thank you. Pass the5 witness.6 JUDGE VICKERY: Thank you. Let's see.7 How long have we gone without a break? I'd like to8 press on, but it may be that someone needs to take a9 break. I just took one, so --

10 JUDGE CARD: Do you have much,11 Mr. Dunbar, in the way of --12 MR. DUNBAR: I don't actually think I13 have much, Your Honor.14 JUDGE VICKERY: Does anyone need to take15 a break? That's the question I should be asking.16 (Discussion off the record)17 JUDGE VICKERY: Let's go back on the18 record. Mr. Dunbar?19 MR. DUNBAR: Thank you, Judge. I just20 have a few questions.21 RECROSS-EXAMINATION22 BY MR. DUNBAR:23 Q Mr. Murray, regarding Applicant's24 Exhibit 214, the current Permit 1405A, do you know who25 applied for that permit?

Page 440

1 A No, sir.2 Q Okay. Have you ever seen that permit3 application?4 A Yes. I have seen the permit application,5 yes.6 Q Okay. You're just not familiar with who7 applied for it or who is shown in that application as8 being the applicant?9 A No, not really.

10 Q Okay. But whoever the applicability was as11 shown in that permit application, is it your12 understanding that that would be -- indeed they would13 have been issued permit 1405A?14 A Yes, I -- that sounds reasonable, yeah.15 Q Okay. Thank you. My other line of16 questioning has to go with a question that Mr. Moore17 asked you regarding the need to generate hydrographs18 from your HEC-1 modeling. Do you recall that19 questioning?20 A Yes, sir.21 Q Okay. And I believe you said that all the22 information that is provided from the HEC-1 model is23 available without the need for printing out the24 hydrographs. Is that what you said?25 A Yes.

Page 441

1 Q Okay. Could you tell me, from whatever you2 have in the application from your HEC-1 model, what3 the flow rate is from any calculation you've done in4 terms of its time other than the peak flow rate?5 A Other than the peak flow rate, no, I can't.6 Q Isn't that part of the information that's7 required to create a hydrograph?8 A Yes. It's part of the information that's in9 the hydrograph, but as -- as I said earlier, the --

10 the peak flow rate at our discharge points is the11 primary -- primary area of concern, and because that12 is telling us what it is at that point, anything13 else -- any of the other flow rates will, in fact, be14 less than the peak flow rate.15 Q But you can't tell us what flow rates there16 are at other points in time other than the peak flow17 rate time and how big they are without plotting up a18 hydrograph. Correct?19 A No. But I can definitely say that they will20 be less.21 Q But you don't know how less, and you don't22 know how long that time is, do you?23 A No. They'll be somewhere between zero and24 the peak.25 Q Okay. But if we had a hydrograph printed

Page 442

1 out, you could answer that question, couldn't you?2 A We could do it with a hydrograph. We could3 also do the detailed printout that prints the -- the4 cfs at every five-minute interval -- because I think I5 used the five-minute interval in these storms. There6 are a variety of ways to get it. The hydrograph is7 one of them.8 Q Okay. But that detailed information is not9 included in the application as it exists today, is it?

10 A No, that information is not in the hydrograph11 because it was not necessary for my -- for my approval12 of the -- of the drainage conditions out at the site.13 Q I understand. But it would be necessary to14 answer the question of what flow rates exist at15 certain points in time throughout the storm other than16 the peak flow itself?17 A Yes, that is one of the ways you could use18 it. The other way is, like I said, with a very19 detailed printout of every five minutes, which is20 something else you can get -- one of the many things21 you can get from HEC-1.22 Q Right. But neither of which are in the23 application as it exists today?24 A No, sir, they're not.25 MR. DUNBAR: All right. Your Honor, the



54 (Pages 443 to 446)

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1 only thing else I have that I'd like to introduce as2 exhibits for demonstrative purposes are some of the3 hydrographs I've plotted. If I could go up there4 and --5 JUDGE CARD: Certainly.6 JUDGE VICKERY: Mr. Dunbar, do you need7 to take a minute and kind of pick through them or --8 MR. DUNBAR: There aren't many, Judge.9 JUDGE VICKERY: All right.

10 MR. RILEY: Judge, is this a good time11 for a break? Can we go off the record for a second?12 JUDGE VICKERY: Yeah, we can go off the13 record for a second. Let's go ahead and take a break,14 and we'll get these admitted, and you can -- you can15 also look at them and see if you have any objections,16 and then we'll go forward from there.17 MR. MOORE: Are we done with the18 questions for Mr. Murray or --19 JUDGE VICKERY: Yeah, are you finished20 with --21 MR. DUNBAR: I'm introducing these for22 demonstrative purposes only, Your Honor, and that's23 it. I'm done.24 MR. RILEY: So we can go ahead and --25 JUDGE VICKERY: Mr. Tatu, did you have

Page 444

1 any questions?2 MR. TATU: No.3 JUDGE VICKERY: Mr. Humphrey?4 MR. HUMPHREY: No.5 JUDGE VICKERY: Will there be any6 additional direct?7 MR. MOORE: If you'd give us about five8 minutes -- may we could take that break now.9 JUDGE VICKERY: Let's take the break,

10 come back, and we'll do the direct.11 MR. MOORE: Thank you.12 (Recess from 4:02 p.m. to 4:16 p.m.)13 (TJFA Exhibit Nos. 10 through 14 marked)14 JUDGE VICKERY: Okay. Let's go back on15 the record. TJFA has offered demonstrative16 Exhibits 10 through 14. Are there any objections to17 those exhibits?18 (No response)19 JUDGE VICKERY: All right. TJFA20 Demonstrative 10 through 14 are admitted.21 (TJFA Exhibit Nos. 10 through 1422 admitted)23 JUDGE VICKERY: And it's my24 understanding, Mr. Tatu, you had cross?25 MR. TATU: That's correct.

Page 445

1 JUDGE VICKERY: Mr. Humphrey, no2 additional cross?3 MR. HUMPHREY: That's correct.4 JUDGE VICKERY: Okay.5 MR. MOORE: And no redirect.6 JUDGE VICKERY: Okay. Thank you.7 (Discussion off the record)8 MR. RILEY: Thank you, Your Honor. For9 the record, John Riley, and I'll be presenting the

10 next witness. At this point, Williamson County calls11 Mr. James Jones.12 JUDGE VICKERY: Good afternoon,13 Mr. Jones.14 JAMES JONES,15 having been first duly sworn, testified as follows:16 DIRECT EXAMINATION17 BY MR. RILEY:18 Q Good afternoon, Mr. Jones.19 A Good afternoon.20 Q Would you please give your full name for the21 record?22 A James O. Jones.23 Q And your county of residence?24 A Travis.25 Q I'd ask you to look at the binder that's

Page 446

1 before you and focus -- or flip to, rather, Tab 300.2 Actually, it's APP-300.3 A Okay.4 Q And while you have the binder open, would you5 also look at APP-301 and APP-302 just briefly.6 A Okay.7 Q Have you had a chance to look, at least8 briefly, at those three exhibits?9 A Yes.

10 Q And have you seen them before?11 A Yes, I have.12 Q Do you adopt APP-300, 301, and -- well,13 APP-300 as your testimony today, along with exhibits14 APP-301 and APP-302?15 A Yes.16 Q Thank you, Mr. Jones.17 MR. RILEY: I pass the witness.18 JUDGE VICKERY: Are you going to19 offer -- did you just offer those?20 MR. RILEY: I'm sorry. I neglected to.21 At this point, we'd offer APP-300, 301, and 302.22 JUDGE VICKERY: Okay. That just threw23 me off.24 MR. RILEY: I'm sorry. Me, too.25 JUDGE VICKERY: I thought maybe I had



55 (Pages 447 to 450)

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1 missed something. Any objections to APP-300, 301, or2 302?3 (No response)4 JUDGE VICKERY: APP-300, 301, and 3025 are admitted.6 (APP Exhibit Nos. 300, 301, and 3027 admitted)8 JUDGE VICKERY: Ms. Perales?9 CROSS-EXAMINATION

10 BY MS. PERALES:11 Q Good afternoon, Mr. Jones.12 A Good afternoon.13 Q My name is Marisa Perales, and I represent14 two of the protesting organizations in this matter,15 Hutto Citizens Group and the San -- Heritage on the16 San Gabriel Homeowners Association. I have only a few17 questions for you today.18 A Okay.19 Q Could you turn to Exhibit APP-302?20 A Okay.21 Q When was this report prepared?22 A In 2002. November of 2002.23 Q And can you now turn to Page -- I'm sorry. I24 should have marked this -- Exhibit APP-302, Page 5?25 A Okay.

Page 448

1 Q And you have a table at the top of the page2 there. Is that correct?3 A Yes.4 Q And what does that table reflect?5 A That represents the species that were6 considered either threatened, endangered, or of7 special interest to the State of Texas or the U.S.8 Fish & Wildlife Service.9 Q Have you reviewed the list of endangered,

10 threatened, or special interest species since 2002?11 A Not for this project, no.12 Q Do you know if there have been any change,13 for instance, to endangered species since 2002?14 A Yes, there have, but not necessarily to this15 list.16 Q Okay. Do you know if there have been any17 changes to endangered species that would affect this18 list?19 A I don't believe there have been.20 Q Okay. What about threatened species?21 A No, I don't believe.22 Q Special interest species?23 A I think -- no. I think the candidate species24 are still pretty much the same.25 Q Could you turn to Page 16 of your prefiled

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1 testimony, which is, I believe, APP-300?2 A Okay.3 Q Looking at the response to the question that4 begins at Line 8, it's my understanding that it was a5 Ms. Foster and Ms. Stoddard that visited the property6 and inspected the proposed expansion area. Is that7 correct?8 A Yes, ma'am.9 Q So you did not go visit the proposed

10 expansion area. Is that correct?11 A Not at this time, no.12 Q Did you supervise Ms. Foster and13 Ms. Stoddard?14 A Yes.15 Q So do you know how many times they visited16 the property of the proposed expansion area?17 A I believe they were only out there one time.18 Q Do you know what time of year they were out19 there?20 A I would have to look at the notes, but if the21 report is dated November, I would say they were22 probably out there late summer, early fall.23 Q Do you know for sure, or is that kind of a24 guess?25 A That's just my best guess. I don't know for

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1 sure.2 Q Okay. Do you know for how long or how much3 time they spent at the proposed expansion area on that4 single visit?5 A Actually, I can give you an exact date of6 when they were out there. It was October 2nd of 2002.7 Q Okay. Great.8 A In answer to your other question, they would9 have been out there probably most of the day.

10 Q Do you know for sure how long they were out11 there?12 A Not without going back and checking the13 records, no.14 Q So would that be most of the day -- when you15 say "most of the day," do you mean most of the day,16 like, during daytime hours?17 A Yes. They would have gone out in the morning18 and been through by the afternoon.19 Q Do you know -- does the time of year that20 someone such as yourself or Ms. Foster or21 Ms. Stoddard -- does the time of year that they visit22 a particular area, could that affect the types of23 habitats that they might be searching for?24 A Not so much the habitat as when the animals25 would be there.



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1 Q Okay.2 A In this particular case, the site has been3 deeply farmed for years and was so disturbed, there4 was just no question about that the habitat wasn't5 there. So it didn't matter what time of year you were6 there.7 Q Okay. So, because of the farming practices,8 you're -- are you saying that because of the farming9 practices that have been ongoing there, that it was

10 very unlikely that they were going to encounter any11 species?12 A That's correct.13 Q Does the time of day affect their ability to14 locate or see any endangered, threatened, or special15 interest species?16 A Well, let me back up and explain that process17 to you.18 Q Okay. I'd appreciate that.19 A When you're looking at threatened and20 endangered species, the first thing you do is21 determine if the habitat is even present.22 Q Okay.23 A Would they even be there? If you confirm24 that the habitat is there, then you would do surveys25 for specific species, and that's when you get into

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1 time of day, time of year, and all that. We never got2 to that point --3 Q I see.4 A -- because the habitat wasn't there to begin5 with. So there was no reason to believe they'd even6 be out there.7 Q I see.8 A So we wouldn't have gotten into doing surveys9 at all.

10 Q Okay. And so the presence or absence of a11 habitat is not affected at all by the time of year.12 Is that what you're seeing?13 A It can be affected by the time of the year,14 but in this case, the land is being mechanically15 turned over constantly, so that negates any variation16 you'd have with time of year, other than the crops17 being there.18 Q Okay. So it was -- I guess it was your19 opinion that it didn't matter what time of year you20 visited the property because of the ongoing farming21 that was taking place on the property?22 A That's correct.23 Q And so it was also your opinion that only one24 visit was necessary. Is that correct?25 A That's correct.

Page 453

1 Q And is it safe to assume that it's also your2 opinion that there was no need to update the 20023 report?4 A All I can say is we were not asked to.5 MS. PERALES: Okay. I'll pass the6 witness. Thank you.7 JUDGE VICKERY: Dr. Evans?8 MR. EVANS: No questions.9 JUDGE VICKERY: Ms. Fox?

10 MS. FOX: No, thank you. Pass the11 witness.12 JUDGE VICKERY: Okay. Mr. Dunbar?13 MR. DUNBAR: Just a few questions.14 CROSS-EXAMINATION15 BY MR. DUNBAR:16 Q Good afternoon, Mr. Jones. My name is Larry17 Dunbar. I represent one of the protestants, TJFA.18 We've met before?19 A Yes, sir.20 Q And when did we meet?21 A We worked for the firm of SB Houston &22 Associates together in the early '80s, if my memory23 isn't failing me.24 Q It's good to see you again.25 A You, too.

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1 Q Just, really, one line of questioning, I2 think. If you'd turn to Page 14 of your prefiled3 testimony -- and it's regarding the wetlands survey4 that you or your firm did for this application.5 A Right.6 Q Specifically, Line 28 and 29 where the7 question is asked, "Were any areas within the8 expansion area encountered that exhibit wetland9 hydrology features or characteristics?"

10 And your answer on the next page was,11 "No. No such areas were encountered during the12 inspection of the proposed expansion area."13 Is that the question and answer?14 A That's true.15 Q Okay. Can you explain to us what "wetland16 hydrology features or characteristics" means?17 A It, in a nutshell, means is the site wet --18 under normal circumstances, is the site wet during the19 growing season? A sufficient amount of time to20 sustain a predominance of wetland vegetation.21 Q Okay. And when you say is the site wet,22 basically is the -- either is there standing water or23 the soil -- kind of the topsoil is moist and -- is24 that what you mean by wet?25 A Right. It's either flooded or it's soil



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1 saturated within the top 12 inches of the soil2 profile.3 Q Okay. And during the time of the inspection4 of the proposed expansion area, was that inspection5 done at the same time of year as the endangered6 species inspection that you just talked to Ms. Perales7 about?8 A Yes. It was done the same day.9 Q Okay. And do you know if there was -- how

10 much rainfall had occurred prior to that day of the11 inspection out at the -- in the vicinity of or at the12 expansion area?13 A I don't recall.14 Q Okay. Is it possible it could have not15 rained for a week or two?16 A It's possible.17 Q Or even three or four weeks?18 A Right. It's possible.19 Q Okay. And would that have an effect on20 whether or not there was wetland hydrology21 characteristics at the site at the time the inspection22 was done?23 A Not really, from a regulatory standpoint.24 The way the Corps defines it -- and when I say "the25 Corps," the U.S. Army Corps of Engineers -- is -- what

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1 you're looking for is hydrology that -- even during a2 drought period, the true wetland areas will still be3 present, or there will be evidence that they were4 there even though they may be dried out. Because part5 of what you're looking for is, you know, depressional6 features that would hold water and sustain wetland7 plants, for instance.8 Q Okay. So your testimony is that during this9 inspection, there is no indication of any depression

10 areas that either were or might hold water on the11 site?12 A During our inspection, we didn't find any13 areas that exhibited the required three criteria for14 it to be a wetland, which is plants, hydric soils, and15 hydrology present at the same time.16 Q Okay. Okay. And I guess that's kind of the17 question I'm leading to. I understand that all three18 elements of -- the characteristics that are required19 to establish a wetland -- vegetation, soil, and20 hydrology -- were not present at the same time.21 That's what you've said. Right?22 A That's correct.23 Q The questioning, though, on Page 1424 specifically asked you on Line 16 -- excuse me. The25 question, starting on Line 21, asks if there were any

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1 areas within the expansion area encountered that2 contained hydric soils or hydrophytic vegetation as3 those terms are defined in 307.369 of 330, and you4 said no.5 And those were two of the three6 components. Correct?7 A That's correct.8 Q And then the next question on Line 28, which9 I had just talked to you about, only asked were any

10 areas within the expansion area encountered that11 exhibited wetland hydrology features or12 characteristics, and you said no.13 And so I was really just trying to14 understand, based upon the question and answer in your15 prefiled, whether any standing water or moist soil16 conditions, which is the wetland hydrology features17 and characteristics, were they encountered during the18 inspection?19 A No, they were not.20 Q Okay. But that would depend upon the day21 that the inspection occurred and how much rain might22 have occurred prior to that, just for the hydrology23 features themselves?24 A Yes.25 Q Okay. And did the inspection include looking

Page 458

1 within the existing landfill site itself?2 A No, it did not?3 Q So it's possible there was standing water,4 counting the water within the landfill site itself,5 that would have exhibited wetland hydrology features6 or characteristics during the day of inspection that7 your firm conducted?8 A Well, again, we -- we looked only at the9 expansion area. That's all we were asked to look at,

10 so --11 Q Okay.12 A We didn't even travel to the rest of the13 site.14 Q Okay. And so do you know -- the expansion15 area, as you understand it, was that area outside the16 existing permit boundary but within the proposed17 permit boundary?18 A That's correct.19 MR. DUNBAR: Okay. That's all the20 questions I have, Judge. Pass the witness.21 JUDGE VICKERY: Mr. Tatu?22 MR. TATU: Thank you.23 CROSS-EXAMINATION24 BY MR. TATU:25 Q Thank you, Mr. Jones. For the record, I'm



58 (Pages 459 to 462)

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1 Anthony Tatu on behalf of the Executive Director of2 the TCEQ. I just have a few follow-up questions for3 you. You state on Page 5 of your prefiled testimony4 that you regularly attend seminars and professional5 conferences in your practice area. Is that correct?6 A That's correct.7 Q And you also state on Page 5 that you have8 provided expert testimony in over ten legal and9 administrative proceedings. Is that correct?

10 A That's correct.11 Q So I would gather, based on your prefiled,12 that you keep fairly up to date on important legal13 developments in the wetlands field?14 A I try to, yes.15 Q Are you familiar with the Supreme Court case16 Solid Waste Agency of Northern Cooke County -- which I17 think has the unfortunate nickname of the SWANCC case?18 A Yes, very much.19 Q Okay. Can you give us a brief nutshell of20 what that decision entailed?21 A The crux of that decision was -- they were22 trying to -- they were proposing to use an old burrow23 pit as a landfill site. The burrow pit had sat for a24 period of time where it had taken on the appearances25 of a natural water body. Ducks were coming in and out

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1 of it.2 And the Corps of Engineers I believe3 ruled that -- or took the position that because it had4 naturalized, that it was a water regime in the United5 States under their jurisdiction and ultimately denied6 the permit. And then it went all the way to the7 Supreme Court.8 The court ruling was that -- and to give9 you a little history on that, their case -- the

10 government's case was tied to migratory birds and the11 fact that migratory birds cross interstate lines.12 They are commercially hunted leases, guides, things13 like that, so they were trying to capture it under the14 commerce clause.15 And that case actually -- or that policy16 began in West Texas in the Playa Lakes through the17 Galveston District. That's what we finally called the18 Duck Butt Law, which any body of water big enough to19 float a duck was jurisdiction.20 The SWANCC case threw that out and said21 that unless there was a true connection to a22 traditionally navigable water, the Corps could not23 take jurisdiction over.24 Q Okay. So, as a result of the SWANCC case,25 has the Corps of Engineers made a distinction between

Page 461

1 isolated wetlands and non-isolated wetlands?2 A Yes, they have.3 Q Okay. And do you recall when that decision4 was? Was it within the last four or five years?5 A I was thinking it was 2001.6 Q So -- so, when you discussed the delineation7 of wetlands and jurisdictional waters of the United8 States, does the term "wetlands," as used in your9 prefiled testimony -- does that include all wetlands,

10 or is that just jurisdictional wetlands?11 A It would include all wetlands.12 Q Okay. So, even if the Corps did not consider13 a particular wetland to be jurisdictional, your14 delineation -- you still went out and looked for those15 isolated wetlands as well?16 A That's correct.17 MR. TATU: Okay. That's all the18 questions I have. I pass the witness. Thank you.19 JUDGE VICKERY: Mr. Humphrey?20 CROSS-EXAMINATION21 BY MR. HUMPHREY:22 Q What's the difference between endangered and23 threatened?24 A Threatened, as the term would imply, is that25 it's in decline, that it's not reached a threatened

Page 462

1 status -- I mean an endangered status yet. It can2 recover.3 Endangered is a term they apply to give4 it a higher level of protection.5 Q So, if I were a lover of a particular6 species, although neither one is desirable, I would7 probably prefer for my species to be threatened, I8 guess, since it's safer if it's threatened?9 A No, no, no. It's safer if it's endangered.

10 Q Right. Okay. But endangered is even worse?11 A Right.12 Q Okay.13 JUDGE CARD: Let me stop you for a14 second. Meaning endangered is offered more protection15 under the Act?16 A That's correct.17 JUDGE CARD: Okay.18 A Right.19 Q (By Mr. Humphrey) And I'd like -- oh, in20 making the determination about the special interest21 species? I think you looked at 13 of them. Is that22 correct?23 A That's correct.24 Q Is there a database that you go to where you25 punch in Williamson County to get this? How do you



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1 determine those 13 species?2 A At this time, we sent letters to U.S. Fish &3 Wildlife Service and Texas Parks & Wildlife and asked4 them to provide us those. There was a time where5 Texas -- some of the states have what they call a6 Natural Heritage Program where you can go to a data7 base, and it will list all the species of concern.8 Texas Parks & Wildlife -- we went9 through a period where everyone, particularly in

10 Central Texas, was really sensitized over the issue of11 endangered species. The State, because of property12 rights, no longer maintained such as list.13 What they do have is a -- they have a14 database of voluntary reports of species from birders,15 biologists, landowners. But the big difference is16 they're not allowed to go onto private land seeking17 out these species anymore. So that's the difference18 between those databases.19 Q But Texas Parks & Wildlife is your primary20 source to determine which ones to study for Williamson21 County?22 A Texas Parks & Wildlife and U.S. Fish &23 Wildlife Service, those two.24 Q One Federal and one State?25 A Right.

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1 Q And if I may, I'm looking at your exhibit2 APP-302 on Page 5. I had noticed that on Table 13 there are some blanks in the Federal status area,4 whereas the State status there are some5 identifications. Why would that be that the Federal6 would not have a designation for some whereas there7 are some for State?8 A Actually, there are several species where the9 State will list them either as endangered or

10 threatened from their standpoint, but the Federal11 agencies don't list them, don't feel like they are,12 and vice versa, which is one of the reasons we check13 both lists.14 Q So, from the point of view of the Federal,15 they feel like whatever that species is, it is16 sufficiently plentiful that it should not be17 designated as such, whereas the State is more18 concerned about it?19 A That's correct.20 Q And would that same reasoning -- I noticed21 that the last five or so from the Bone Cave Harvestman22 down to the Georgetown Salamander, it's blank in the23 State area, but they did come up for Williamson24 County. Does that mean that those particular species25 don't tend to be around the proposed site, but they

Page 465

1 are in Williamson County somewhere? Is that why2 they're blank?3 A These particular species are going to be on4 the Edwards Plateau, so they're going to be in the5 western part of Williamson County. Generally, I-35 is6 the breakpoint for those two. If they're west of I-357 you'd expect to find them. East of I-35, you're8 getting down into the prairies, and you -- the habitat9 isn't there.

10 Q So is it a fair summation to say that on your11 table, the ones that are blank are species that would12 be found west of I-35; and, therefore, they weren't13 applicable to the evaluation of this site?14 A Correct.15 Q Okay. Thank you.16 MR. HUMPHREY: Thank you, Your Honor.17 I'll pass the witness.18 JUDGE VICKERY: Redirect?19 MR. RILEY: A few questions.20 REDIRECT EXAMINATION21 BY MR. RILEY:22 Q Mr. Jones, have you visited the site of the23 proposed expansion for the Williamson County Landfill?24 A Yes, I have.25 Q And when did you visit the site?

Page 466

1 A It was about two weeks ago.2 Q And would you agree with me that it's fair to3 say there's been a substantial amount of rainfall this4 year in Williamson County?5 A Yes.6 Q Would you agree with me that that rainfall7 was recent to -- or in proximity to your visit to the8 Williamson County Landfill?9 A Yes.

10 Q Based on your own personal observations and11 your knowledge of your employees that you supervised12 in preparation of the report, did you see any reason,13 from your visit, to disagree with the observations14 recorded by your employees that prepared the report in15 this case?16 A No, I didn't.17 Q Specifically with respect to the expansion18 area, do you remember what you observed regarding the19 use of the land presently that you understand to be20 the expansion area for the Williamson County Landfill?21 A It was -- the application area appeared to be22 completely in agriculture.23 Q And do you remember what types of crops, if24 you recall?25 A It looked like it was all sorghum, if I



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1 remember correctly.2 Q Did you see any cotton? Do you recall?3 A (No response)4 Q I'm not sure I would know the difference5 between sorghum --6 A I don't recall --7 Q -- and cotton.8 A -- whether there was any on that site or9 night. There was some out there in that area.

10 Q So, to the best of you personal observations,11 you saw no reason to disagree with the report that12 your employees prepared regarding the expansion area.13 Is that correct?14 A That's correct.15 Q Why is it that you would -- well, withdrawn.16 I think you indicated -- and I17 apologize, but I don't recall who was18 asking you questions -- that the first step in19 evaluating concerns regarding an endangered or20 threatened species would be to define or look for21 habitation. Is that correct?22 A That's correct.23 Q How would you -- based on your personal24 observations of the site, is there a reason you would25 not expect to find habitat on the expansion area?

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1 A The -- what we do with each of these species2 once we get a list is you go into -- for the ones that3 are endangered, U.S. Fish & Wildlife Service will have4 a written recovery plan for those species. And in5 there, they describe in detail what the habitat is for6 that species.7 The other species -- Parks & Wildlife,8 Fish & Wildlife both will have habitat descriptions9 for those also. So, using those descriptions, we'll

10 go to the site and see if, in fact, they occur there.11 Some of these, like the last five we12 talked about that we know occur in the Edwards13 Plateau -- and they're associated with limestone14 formations -- are not going to be over on that side of15 the county, because the habitat clearly isn't there.16 Q Does the use of the land affect the17 evaluation of the habitat?18 A Yes, it does.19 Q The land -- in other words -- I'm sorry for20 interrupting.21 A Okay.22 Q The present use of the land -- in this case,23 farmland -- does that affect habitat evaluation?24 A It does when it's consistently farmed like25 that.

Page 469

1 Q Okay. And is it your opinion that this2 farmland -- this land has been consistently farmed?3 A From what we reviewed, it appears so, yes.4 Q Mr. Dunbar asked you some questions about --5 I guess it's hydrophytic vegetation -- the three6 components that would be part of a wetlands7 evaluation. Do you recall those questions?8 A Yes.9 Q Okay. And I think you said at one point that

10 one would need to look -- or look to find all three.11 Is that correct?12 A That's correct.13 Q But I also understood, at least to my14 understanding, even if an area had been -- had been, I15 guess, wet at one point, that you'd still expect to16 find certain types of vegetation associated with a17 wetland if, indeed, it met the jurisdictional18 criteria. Is that correct?19 A You'd still expect to find indications that20 it was there. A good example on an agricultural field21 is -- you know, in the most extreme cases, they'll22 have crops plants, and you'll have an area that23 they've either plowed around it and not gone into24 it -- nine times out of ten it's because it's wet --25 or the crop shows stress, doesn't grow as well there.

Page 470

1 Even when it's been cut, you can look across a field,2 and you can see differences in the vegetation. And we3 weren't seeing that there. It was consistent all the4 way through.5 Q When you say "we weren't seeing that there,"6 does that include the report?7 A I was referring to Erin and Stacy.8 Q Okay. And I know you didn't walk the9 property -- or at least it's my understanding you

10 didn't walk the property, but did you see any of11 that -- any of those indications when you personally12 visited the site?13 A No, I didn't.14 Q And I think administrative notice would be15 appropriate, but at least the question I have to you16 is has there been a higher than average rainfall in17 Williamson County this year?18 A Yes, there has.19 MR. RILEY: I have nothing further.20 JUDGE VICKERY: Okay. Ms. Perales?21 MS. PERALES: I have just a couple of22 follow-up questions.23 RECROSS-EXAMINATION24 BY MS. PERALES:25 Q I believe you testified that you recently



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1 visited the site of the proposed expansion. Is that2 correct?3 A Yes, ma'am.4 Q How much time did you spend at the site on5 your most recent visit?6 A I was probably out there three or four hours.7 Q During your visit, were you investigating or8 searching for habitat of endangered, threatened, or9 special interest species?

10 A No. Mainly I was just observing what was out11 there overall to confirm what we had in our report and12 what all the photography I had looked at indicated.13 Q I see. So you were there, I guess, maybe to14 confirm the -- how the land was being used?15 A Yes.16 MS. PERALES: I'll pass the witness.17 Thank you.18 JUDGE VICKERY: All right. Dr. Evans?19 MR. EVANS: I pass the witness.20 JUDGE VICKERY: Ms. Fox?21 MS. FOX: Pass the witness.22 JUDGE VICKERY: Mr. Dunbar?23 RECROSS-EXAMINATION24 BY MR. DUNBAR:25 Q One quick question, Mr. Jones. When you were

Page 472

1 out there visiting the site a couple of weeks ago, did2 you go onto the existing landfill permit property3 itself?4 A Yes, we did drive around.5 Q Okay. You drove around. Did you walk6 through it?7 A We got out and walked through a few areas,8 yes.9 Q Okay. Did you walk through all of it?10 A No.11 MR. TATU: Okay. That's all I have,12 Judge.13 JUDGE VICKERY: Okay. Mr. Tatu?14 MR. TATU: Nothing further.15 JUDGE VICKERY: Mr. Humphrey?16 MR. HUMPHREY: I pass.17 JUDGE VICKERY: Okay. Anything to18 clarify?19 MR. RILEY: No, Your Honor.20 JUDGE VICKERY: Thank you very much,21 Mr. Jones.22 Let's see. Let's go off the record,23 please.24 (Proceedings recessed at 4:50 p.m.)25

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