tceq docket no. 2017-0688-msw application by before … · 2017. 8. 1. · §55.209(d ), (e ), and...

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TCEQ DOCKET NO. 2017-0688-MSW

APPLICATION BY

THE CITY OF FARMERS BRANCH

FOR MUNICIPAL SOLID WASTE

PERMIT NO. 1312B

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BEFORE THE

TEXAS COMMISSION ON

ENVIRONMENTAL QUALITY

RESPONSE OF APPLICANT, CITY OF FARMERS BRANCH,TO REQUESTS FOR HEARING

AND REQUESTS FOR RECONSIDERATION/REHEARING

TO THE HONORABLE COMMISSIONERS OF THE TEXAS COMMISSION ONENVIRONMENTAL QUALITY:

Comes now the City of Farmers Branch (the City or Farmers Branch) and, pursuant to 30 TAC§55.209(d), (e), and (f), files this Response to Requests for Hearing and Requests forReconsideration/Rehearing regarding the City’s application for amendment to the municipal solidwaste landfill facility permit for its Camelot Landfill, Permit No. 1312B (the Application), andrespectfully requests that the Commission deny all such remaining requests and approve theissuance of the permit as recommended by the Executive Director.

I. INTRODUCTION

There are three pending requests for contested case hearing regarding the Application.1 The otherseventeen previously-filed requests for contested case hearing have been withdrawn, all since thetime the Application was revised to lower the proposed landfill height and to make various otherconcessions and revisions. The hearing requests submitted by the City of Carrollton (3 requests),the City of Lewisville, State Senator Jane Nelson, and (former) State Representative BurtSolomons have all been withdrawn, as have all hearing requests submitted by three corporateentities2 and six individuals3. Each of the three remaining hearing requests should be deniedbecause they do not satisfy applicable requirements in the Commission’s rules.

There are four pending requests for reconsideration/rehearing regarding the Application, submittedby Kevin Gardner, Michael Keith, Mike Petty, and Clint Tomlinson. Each of those requests shouldbe denied because the Application is a matter with respect to which the Commission’s rulesspecifically provide the opportunity for affected persons to request a contested case hearing andthe failure of these requestors to seek a contested case hearing constitutes a failure to exhaust their

1 The pending hearing requests were submitted by Luke An, Naresh S. and Anjuli Mathur, and Lynn Stein.

2 PBH Bella Vida, LLC (3 requests), Bella Vida Gardens Associates, LLC and Sucharash Bella Vida, LLC.

3 Clint Tomlinson (2 requests), April Black, Virginia Ann Monreal, Mark S. Connolly, Clifford Liston Dunn,and Ramkumar Babu Subbaraj.

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available administrative remedies4, and because they do not satisfy applicable requirements in theCommission’s rules.

II. RESPONSE TO REQUESTS FOR CONTESTED CASE HEARING

A. LUKE AN HEARING REQUESTLuke An filed a hearing request on December 12, 2012. 30 TAC §55.201(d) requires that a hearingrequest substantially comply with several specific requirements. Mr. An’s request does not satisfythose requirements and should be denied.

Mr. An is Not an Affected PersonIn 2014, Luke An sold the residential property that he had formerly owned and lived in (located at1537 Bastrop Drive in Carrollton, Texas5) and moved to Los Angeles County, California. As aresult, he is not an affected person and his hearing request should be denied.

The hearing request filed by Mr. An on December 12, 2012 showed his address as 1537 BastropDrive, Carrollton, Texas. Denton County Appraisal District (DCAD) records show that Mr. Anand Grace Kim acquired the property on Bastrop Drive on November 11, 2012 (approximately onemonth before he submitted his hearing request), and that Mr. An and Ms. Kim conveyed thatproperty to Ricardo and Lorie Ann Rodriguez on June 24, 2014 (more than three years ago).6,7 Asshown by the acknowledgments on the June 24, 2014 deed to the Rodriguezes, Mr. An and Ms.Kim both signed that deed in Los Angeles County, California.8 In 2011, Mr. An and Ms. Kim hadformed a Texas corporation, An & Kim, Inc., with a Carrollton, Texas address. In March 2014,Mr. An filed a Texas Franchise Tax report for the corporation, showing his address as the 1537Bastrop Drive property. In September 2014, several months after Mr. An and Ms. Kim sold theirproperty on Bastrop Drive, they filed a Certificate of Termination of a Domestic Entity for An &

4 Clint Tomlinson submitted requests for contested case hearing on April 29 and May 1, 2017, but hesubsequently (on June 18, 2017) withdrew those requests.

5 As shown in the Application, the Camelot Landfill is located in Denton County. After the landfillcommenced operating, the landfill site was annexed by the City of Lewisville and is now within the city limitsof the City of Lewisville. The area immediately to the east of the southern portion of the landfill site is locatedwithin the City of Carrollton. (Application, Part I/II, Figure I/II-4.1; Appendix II/IIE, Land Use Study)

6 The Denton County Appraisal District report for 1537 Bastrop Drive, Carrollton, Texas is available on-line athttps://www.dentoncad.com/api/export/pdf/details/199784 and is attached hereto as Attachment 1.

7 The Denton County Appraisal District records referenced in note 6 above also show that the Rodriguezes soldthe 1537 Bastrop Drive property on August 5. 2016 to Narayanan Gopalakrishnan and Sushama Sivakumar.Neither the Rodriguezes nor the current owners of the 1537 Bastrop Drive property filed hearing requests,requests for reconsideration, or public comments regarding the Application.

8 See June 24, 2014 deed from Mr. An and Ms. Kim conveying the 1537 Bastrop Drive property to theRodriguezes (Denton County Real Property Records, Document No. 2014-62680), attached hereto asAttachment 2.

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Kim, Inc., including notification of Luke An’s address as 3557 Fairesta St., La Crescenta,California, which is in Los Angeles County.9

Mr. An sold hits property in Carrollton and moved to Los Angeles County, California more thanthree years ago, after filing his request for contested case hearing. Mr. An does not own propertyor otherwise reside within any distance relevant to consideration of the Application and thereforedoes not have a personal justiciable interest related to a legal right, duty, privilege, power, oreconomic interest affected by the Application. Mr. An is therefore not an affected person asdefined by 30 TAC §55.203(a). Accordingly, Mr. An’s request for contested case hearing shouldbe denied.

Mr. An’s Hearing Request Does Not List or Identify Disputed Issues of FactMr. An’s hearing request does not identify any personal justiciable interest affected by theApplication, and the areas of concern identified by Mr An (discussed below) are common tomembers of the general public. As such, these areas of concern do not qualify as a personaljusticiable interest. Mr. An is therefore not an “affected person” as defined by 30 TAC §55.203(a)and his request for contested case hearing should be denied.

Mr. An’s Concerns - Water/ Air/ EnvironmentMr. An states that, as a resident of Carrollton, he is concerned that the expansion of the CamelotLandfill can cause water and air pollution and that he does not want the landfill to destroy theenvironment. As discussed above, Mr. An is no longer a resident of Carrollton and his request forcontested case hearing does not raise or identify a disputed issue of fact. The concerns raised byMr. An are vague, general, and over-broad. As such, Mr. An’s request for contested case hearingfails to state any relevant and material disputed issues of fact as required by 30 TAC§330.55.201(d)(4)(A) and 30 TAC §50.115(c)(3). Accordingly, Mr. An’s hearing request shouldbe denied.

B. NARESH S. AND ANJULI MATHUR HEARING REQUESTNaresh S. and Anjuli Mathur filed a hearing request on April 27, 2017. 30 TAC §55.201(d) requiresthat a hearing request substantially comply with several specific requirements. The Mathurs’request does not satisfy those requirements and should be denied.

The Mathurs are Not Affected Persons30 TAC §55.201(d)(2) requires a hearing request to:

identify the person's personal justiciable interest affected by the application,including a brief, but specific, written statement explaining in plain language therequestor's location and distance relative to the proposed facility or activity that is

9 See documents related to An & Kim, Inc. from the records of the Texas Secretary of State, attached hereto asAttachment 3:- Certificate of Formation For-Profit Corporation, Tex. Sec of State Filing No. 801516322, 12/07/2011,Document No. 399695260002.- Texas Franchise Tax Public Information Report, Tex. Sec of State Filing No. 801516322, 03/15/2014.- Certificate of Termination of a Domestic Entity, Tex. Sec of State Filing No. 801516322, 09/09/2014,Document No. 567033950002.

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the subject of the application and how and why the requestor believes he or she willbe adversely affected by the proposed facility or activity in a manner not commonto members of the general public; …

The Mathurs’ request for contested case hearing does not substantially comply with 30 TAC§55.201(d)(2). The Request does not identify the Mathurs’ personal justiciable interest and doesnot include a specific written statement explaining the Mathurs’ location and distance relative tothe proposed facility. The Request does not explain how and why the requestors believe they willbe adversely affected by the proposed facility or activity in a manner not common to members ofthe general public. Because the Mathurs’ Hearing Request does not identify any personaljusticiable interest affected by the Application, the Mathurs are not “affected persons” as definedby 30 TAC §55.203(a). Moreover, even if the Mathurs’ identification of areas of concern(discussed below) could be considered evidence of “affected persons” status, the Mathurs identifyas concerns only interests common to members of the general public. As such, these areas ofconcern do not establish a personal justiciable interest on the part of the Mathurs. Accordingly, theMathurs’ request for contested case hearing should be denied.

The Mathurs’ Hearing Request Does Not List or Identify Any Disputed Issues of Fact30 TAC §55.201(d)(4) requires a request for contested case hearing to:

list all relevant and material disputed issues of fact that were raised during thepublic comment period and that are the basis of the hearing request. To facilitatethe commission's determination of the number and scope of issues to be referred tohearing, the requestor should, to the extent possible, specify any of the executivedirector's responses to comments that the requestor disputes and the factual basisof the dispute and list any disputed issues of law or policy;

The Mathurs do not list or identify any disputed issues of fact. Nor does their Request state whetherthe various concerns addressed in their request were raised in timely filed public comment. Whilethe Mathurs’ request for contested case hearing lists five areas of concern, none of those listedconcerns raise or identify any disputed issues of fact as required by 30 TAC §55.201(d)(4). Assuch, the Mathurs’ request for contested case hearing should be denied.

Mathurs’ Concern - LocationThe Mathurs provide as their item 1 their allegations that landfills “are intended to fill low lyingland” and “should be located in industrial areas and away from residential neighborhoods”. TheMathurs further assert that the Camelot landfill “served its purpose”, “is surrounded by residentialcommunities”, “continues to deteriorate our Indian Creek residential community and otherresidential communities”, and “is now a dump for other cities at the expense of our neighborhood”.

The Mathurs’ concerns regarding location of landfills do not identify any disputed issue of fact asrequired by 30 TAC §55.201(d)(4). No TCEQ rule or any other law requires that a landfill mustfill low lying land or be located in an industrial area and away from residential neighborhoods.The Application states that 11.2% of the land located within one-mile of the facility is residential,nearly all of which occurs in or adjacent to the City of Carrollton, south and east of the Camelotlandfill. (Application, Part I/II, Appendix II/IIE, Land Use Study, p. I/II.6.) The Camelot landfillserves (and will serve) the City of Farmers Branch, Denton County and surrounding communities.(E.g.: Application, Part I/II, p. I/II-1-1.) The Mathurs do not dispute the characterization of existingland use or the area of service as stated in the Application. In addition, the Mathurs’ concerns

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regarding the location of landfills do not identify any applicable permitting standard to which theseconcerns relate. They are, therefore not relevant or material to the TCEQ’s consideration of theApplication as required by 30 TAC §330.55.201(d)(4)(A) and 30 TAC §50.115(c)(3).Accordingly, the Mathurs’ request for contested case hearing, as related to their landfill locationconcerns, should be denied.

Mathurs’ Concern - OdorIn their request for contested case hearing item 2, the Mathurs state that they regularly experienceodors from the landfill and the odor interferes with their ability to enjoy their property.

The Mathurs’ concerns regarding odor do not identify any disputed issue of fact as required by 30TAC §55.201(d)(4). The Application includes an odor management plan, in Part IV, Section 4.10,Air Quality and Odor Management Plan, pp. IV-23 - IV-26, and otherwise includes adequateprovisions to control odor as required by 30 TAC §§ 330.15 and 330.149. In addition, the Mathurshave not identified any applicable permitting standard to which their stated concerns regardingodor and the existing landfill relate, so those concerns are not relevant and material to theCommission’s consideration of the Application as required by 30 TAC §330.55.201(d)(4)(A) and30 TAC §50.115(c)(3). Accordingly, the Mathurs’ request for contested case hearing, as related totheir odor concerns, should be denied.

Mathurs’ Concern - Property ValueThe Mathurs contend in their item 3 that visibility of the landfill from Hebron Parkway hasdepressed the Mathurs’ property value and that odor, visibility, and continued operation of theproposed expanded facility will further depress their property value.

The Mathurs’ concerns regarding impacts on the value of their property do not identify anydisputed issue of fact as required by 30 TAC §55.201(d)(4). The Application provides thatintermediate and final cover of the landfill will be vegetated with native grasses and wildflowers.(Application: Page I/II-1-2). The Application also provides that natural vegetation within the on-site buffer zone will be allowed to remain, to the extent possible, to provide visual screening oflandfill operations. (Id.) Additionally, the Application proposes a landscape bench on the east andsoutheast slope of the final cover of the landfill to provide additional visual screening. (Id.) TheExecutive Director has not determined that any additional visual screening is necessary inaccordance with 30 TAC §330.175.

The Mathurs’ contention that the proposed expansion will adversely affect property value is notmaterial or relevant to TCEQ’s consideration of the Application. TCEQ's jurisdiction is establishedby the Texas legislature in state statutes and is limited to the issues set forth there. Tex. Health &Safety Code §361.011 establishes the Commission's jurisdiction over the management ofmunicipal solid waste. As the Commission has stated many times, its jurisdiction over municipalsolid waste management does not include evaluation and consideration of property value impacts.Consideration of potential impacts to property values are not relevant or material to theCommission's consideration of an application for an MSW permit as required by 30 TAC§330.55.201(d)(4)(A) and 30 TAC §50.115(c)(3).

Accordingly, the Mathurs’ request for contested case hearing, as related to their property value

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concerns, should be denied.

Mathurs’ Concern - Truck Traffic/Truck Noise/Property ValueThe Mathurs state that there is heavy truck traffic on Hebron Parkway due to the landfill and thatexpansion of the landfill will result in an increase in heavier truck traffic that will result inincreased accidents and increased noise. The Mathurs also state that the truck traffic and trucknoise will further lower their property value. These stated concerns do not satisfy the applicablerequirements in the Commission’s hearing request rules and should be denied.

Pursuant to 30 TAC §330.61(i) Transportation, the Application includes an evaluation of existingtraffic volume, the projected traffic volume and the projected impact on roadways in the immediatevicinity of the landfill and includes evidence of coordination with the Texas Department ofTransportation (TxDOT) (Application: Parts I/II, Appendix I/IID). The traffic study demonstratesthat the existing access roads could handle the projected traffic volume through the projected lifeof the landfill. In response to the traffic study, TxDOT issued a letter concurring that the existingaccess roads can handle the projected traffic volume through the projected life of the landfill.(Application: Parts I/II, Appendix I/IIB).

The Mathurs do not raise or identify any disputed issue of fact, as required by 30 TAC§55.201(d)(4), regarding their concerns related to truck traffic and truck noise and their impact onproperty values, or to the transportation information contained in the Application, or withTxDOT’s concurrence that the existing access roads can handle the projected traffic volumethrough the projected life of the landfill. The Mathurs also do not identify any applicable permittingstandard to which their stated concerns regarding truck traffic and truck noise and the impact oftruck traffic and noise on property values relate and, thus, those concerns are not relevant ormaterial to the TCEQ’s consideration of the Application as required by 30 TAC§330.55.201(d)(4)(A) and 30 TAC §50.115(c)(3). Accordingly, the Mathurs’ request for contestedcase hearing should be denied.

Mathurs’ Concern - Plastic LinersThe Mathurs state their concern that plastic liners are likely to develop holes and leak highlycontaminated liquid that will contaminate ground water and other surrounding waterways. TheMathurs’ concerns regarding plastic liners do not raise or identify any issue of fact as required by30 TAC §55.201(d)(4). In addition, the Mathurs’ request for contested case hearing does notidentify any applicable permitting standard to which their stated concerns regarding plastic linersrelate. The Camelot Landfill is designed and will be constructed and operated in compliance withTCEQ rules including 30 TAC Chapter 330, subchapter H. (See, e.g., Application Part IIIA -Landfill Unit Design, Appendix IIIA-A - Liner, Overliner, and Final Cover.) Because the Mathurs’concerns regarding liners do no raise or identify any disputed issue of fact and they are not relevantor material to TCEQ’s consideration of the Application as required by 30 TAC §330.55.201(d)(4)and 30 TAC §50.115(c)(3), the Mathurs’ request for contested case hearing should be denied.

C. LYNN STEIN HEARING REQUESTLynn Stein filed a hearing request on December 4, 2012. 30 TAC §55.201(d) requires that ahearing request substantially comply with several specific requirements. Ms. Stein’s request doesnot meet those requirements and should be denied.

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Ms. Stein is Not an Affected PersonMs. Stein states that she is “within 2.5 miles of the site and would be visually affected as well ashealthwise.” Ms. Stein does not state the direction from the facility to her property and does notdistance restrictions or other limitations imposed by law on any affected interest. (See 30 TAC§55.203(c)(2).) Because Ms. Stein’s Hearing Request does not identify any personal justiciableinterest affected by the Application, she is not an “affected persons” as defined by 30 TAC§55.203(a). Moreover, even if the areas of concern identified by Ms. Stein, (discussed below) )could be considered evidence of “affected persons” status, those identified concerns are commonto members of the general public. As such, these areas of concern do not establish a personaljusticiable interest on the part of Ms. Stein. Accordingly, Ms. Stein is not an “affected person” asdefined by 30 TAC §55.203(a) and her request for contested case hearing should be denied.

Ms. Stein’s Hearing Request Does Not List or Identify Any Disputed Issues of Fact30 TAC §55.201(d)(4) requires a hearing request to:

list all relevant and material disputed issues of fact that were raised during thepublic comment period and that are the basis of the hearing request. To facilitatethe commission's determination of the number and scope of issues to be referred tohearing, the requestor should, to the extent possible, specify any of the executivedirector's responses to comments that the requestor disputes and the factual basisof the dispute and list any disputed issues of law or policy;

Ms. Stein’s request does not list or identify any disputed issues of fact or state whether any relevantand material disputed issue of fact was raised during the public comment period. While Ms. Stein’srequest for contested case hearing lists areas of concern, none of those concerns raise or identifydisputed issues of fact as required by 30 TAC §55.201(d)(4), and her request for contested casehearing should therefore be denied.

Ms. Stein’s Concern - Odor/Property ValueMs. Stein asserts that the smell of the expanded landfill “would adversely affect the whole areaand would reduce property values”.

In her hearing request, Ms. Stein does not identify any disputed issue of fact regarding odor, asrequired by 30 TAC §55.201(d)(4). The Application includes an odor management plan in theApplication, Part IV, Section 4.10, Air Quality and Odor Management Plan, pp. IV-23 - IV-26 andotherwise includes adequate provisions to control odor as required by 30 TAC, §§ 330.15 and330.149. In addition, Ms. Stein’s hearing request does not identify any applicable permittingstandard to which her stated concern regarding odor relates, so that concern is not relevant andmaterial to the Commission’s consideration of the Application as required by 30 TAC§330.55.201(d)(4)(A) and 30 TAC §50.115(c)(3). Accordingly, Ms. Stein’s request for contestedcase hearing, as related to her odor concern, should be denied.

Ms. Stein’s concern that odor associated with the expanded landfill will adversely affect propertyvalue does not identify any disputed issue of fact as required by 30 TAC §55.201(d)(4), and is notmaterial or relevant to TCEQ’s consideration of the Application. TCEQ's jurisdiction is establishedby the Texas Legislature in state statute and is limited to the issues set forth in statute. Tex. Health& Safety Code §361.011 establishes the Commission's jurisdiction over the management ofmunicipal solid waste. As the Commission has stated many times, its jurisdiction over municipal

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solid waste management does not include evaluation and consideration of property value impacts.Consideration of potential impacts to property values are not relevant or material to theCommission's consideration of an application for an MSW permit as required by 30 TAC§330.55.201(d)(4) and 30 TAC §50.115(c)(3).

Accordingly, Ms. Stein’s request for contested case hearing, as related to her concern that odorwill adversely affect property value, should be denied.

Ms. Stein’s Concern - Visibility/Property ValueMs. Stein asserts that the view of the expanded landfill “would adversely affect that the whole areaand would reduce property values”.

Ms. Stein’s concern regarding the view of the Camelot landfill expansion and its impact onproperty value does not identify any disputed issue of fact as required by 30 TAC §55.201(d)(4).The Application provides that intermediate and final cover of the landfill will be vegetated withnative grasses and wildflowers. (Application: Page I/II-1-2). The Application also provides thatnatural vegetation within the on-site buffer zone will be allowed to remain, to the extent possible,to provide visual screening of landfill operations. (Id.) Additionally, the Application proposes alandscape bench on the east and southeast slope of the final cover of the landfill to providescreening. (Id.) The Executive Director has not determined that any additional visual screening isnecessary in accordance with 30 TAC §330.175.

Ms. Stein’s concern that the view of the expanded landfill will adversely affect property value doesnot identify any disputed issue of fact as required by 30 TAC §55.201(d)(4), and is not material orrelevant to TCEQ’s consideration of the Application. TCEQ's jurisdiction is established by theTexas Legislature in state statute and is limited to the issues set forth in statute. Tex. Health &Safety Code §361.011 establishes the Commission's jurisdiction over the management ofmunicipal solid waste. As the Commission has stated many times, its jurisdiction over municipalsolid waste management does not include evaluation and consideration of property value impacts.Consideration of potential impacts to property values are not relevant or material to theCommission's consideration of an application for an MSW permit as required by 30 TAC§330.55.201(d)(4) and 30 TAC §50.115(c)(3).

Accordingly, Ms. Stein’s request for contested case hearing, as related to her concern that viewsof the expanded landfill will adversely affect property value, should be denied.

Ms. Stein’s Concern - Methane GasMs. Stein’s hearing request states that she does not want to “subject her family and pets to thepotential health hazards due to prolonged exposure to methane gas…” Ms. Stein’s stated concernregarding methane gas does not identify any disputed issue of fact as required by 30 TAC§55.201(d)(4). The Application includes a Landfill Gas Management Plan in the Application, PartIII-I and otherwise includes adequate provisions to control landfill gas management as required by30 TAC, §§330.63(g) and 330.371. In addition, Ms. Stein’s hearing request does not identify anyapplicable permitting standard to which her stated concern regarding methane gas relates, so thatconcern is not relevant and material to the Commission’s consideration of the Application as

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required by 30 TAC §330.55.201(d)(4)(A) and 30 TAC §50.115(c)(3). Accordingly, Ms. Stein’srequest for contested case hearing, as related to her methane gas concern, should be denied.

Ms. Stein’s Concern - Groundwater ContaminationMs. Stein’s hearing request states that she does not want to “subject her family and pets to thepotential health hazards due to prolonged exposure to . . . ground water and other contamination.”Ms. Stein’s stated concern regarding groundwater and other contamination does not identify anydisputed issue of fact as required by 30 TAC §55.201(d)(4). The Application contains allinformation concerning design, construction and operation of the proposed landfill expansion thatrelate to protection of groundwater as required by the TCEQ’s MSW regulations including:

Site Development Plan, Application - 30 TAC §330.63(a) General Facility Design, - 30 TAC §330.63(b) Waste Management Unit Design - 30 TAC §330.63(d) Geology Report - 30 TAC §330.63(e) Geotechnical Report - 30 TAC §330.63(e)(4)-(5) Groundwater Monitoring, Sampling and Analysis Plan - 30 TAC §330.63(f) Landfill Gas Management Plan - 30 TAC 30 TAC §330.63(g) 10

In addition, Ms. Stein’s hearing request does not identify any applicable permitting standard towhich her stated concern regarding groundwater contamination relates, so that concern is notrelevant and material to the Commission’s consideration of the Application as required by 30 TAC§330.55.201(d)(4)(A) and 30 TAC §50.115(c)(3). Accordingly, Ms. Stein’s request for contestedcase hearing, as related to her groundwater contamination concern, should be denied.

D. ISSUES TO BE REFERRED TO SOAH FOR HEARING

As discussed above, the three pending hearing requests do not satisfy requirements in theCommission’s rules regarding form and content of a request for contested case hearing. Theindividuals who submitted hearing requests are not affected persons as defined by the Commissionrule at 30 TAC §55.203(a) (in fact, Mr. An sold his property in Carrollton and moved to LosAngeles County, California more than three years ago). The concerns identified in the hearingrequests do not list or identify disputed issues of fact as are required to be stated in a request forcontested case hearing by Commission rule at 30 TAC §55.201(d)(4). And the concerns set out inthe hearing requests do not identify any applicable permitting standard to which the stated concernsrelate, so the concerns are not relevant and material to the Commission’s consideration of theApplication as required by 30 TAC §330.55.201(d)(4)(A) and 30 TAC §50.115(c)(3). For theseand other reasons as set forth above, the Commission should deny the requests for contested casehearing by Mr. An, the Mathurs, and Ms. Stein.

In the alternative, should the Commission find that the Mathurs and/or Ms. Stein are affectedpersons and that one or more of the concerns stated in their requests for contested case hearingraise disputed issues of fact regarding issues that are relevant and material to the Commissionsconsideration of the Application, and that such issue(s) should therefore be referred to the State

10 This list is not exclusive of the provisions of the Application addressing groundwater protection or of theTCEQ’s MSW Rules that address groundwater protection.

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Office of Administrative Hearings for a contested case hearing, Farmers Branch suggests that suchissue(s) should be stated as set out in the following list:

Issues from the Mathurs’ Hearing Request:1. Does the Application comply with the land use provisions in the Commission’s MSW rules?2. Does the Application comply with the odor provisions in the Commission’s MSW rules?3. Does the Application comply with the vehicular traffic provisions in the Commission’s MSWrules?4. Do the plastic liners proposed for the landfill meet the requirements in the Commission’sMSW rules?

Issues from Ms. Stein’s Hearing Request:2. Does the Application comply with the odor provisions in the Commission’s MSW rules?5. Does the Application comply with the methane gas provisions in the Commission’s MSWrules?6. Does the Application comply with the groundwater protection provisions in the Commission’sMSW rules?

Because of the limited number of hearing requestors and possible issues to be referred, FarmersBranch suggests six months as the maximum expected duration of a contested case hearing toaddress any or all of the foregoing issues and to provide the Commission with a Proposal forDecisions should be six months.

III. RESPONSE TO REQUESTS FOR RECONSIDERATION/REHEARING

The Commissioners’ Integrated Database identifies requests for reconsideration/rehearing fromfour individuals: Clint Tomlinson, Michael Keith, Mike Petty, and Kevin Gardner. Pursuant to 30TAC §55.201(e), a “request for reconsideration must expressly state that the person is requestingreconsideration of the executive director's decision, and give reasons why the decision should bereconsidered.” None of the documents filed by Messrs. Tomlinson, Keith, Petty or Gardner satisfythese requirements in Section 55.201(e). In addition, the Application is a matter with respect towhich the Commission’s rules specifically provide the opportunity for affected persons to requesta contested case hearing. The failure of these requestors to seek a contested case hearing constitutesa failure to exhaust their available administrative remedies.

While the requests identify areas of concern, they do not include any reasons why any aspect ofthe Executive Director’s decision should be reconsidered as required by Section 55.201(e). Likethe requests for contested case hearing discussed above, the requests for reconsideration do notraise disputed issues or fact, but rather state areas of concern. All of the areas of concern raisedby the purported requests for reconsideration, i.e., odor, truck traffic, noise, land use, visibility,environmental quality, and property value, have been addressed in the foregoing Response toRequests for Hearing. Farmers Branch incorporates those responses as its response to the issuesraised in requests for reconsideration/rehearing pursuant to 30 TAC §55.209(f).

Accordingly, all of the requests for reconsideration/rehearing should be denied.

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SERVICE LISTTCEQ Docket No. 2017-0688-MSW

Application of City of Farmers Branch for Proposed Permit No. 1312B

FOR THE EXECUTIVE DIRECTOR

Diane Goss, Staff AttorneyShannon Love, Staff AttorneyTexas Commission on Environmental QualityEnvironmental Law Division, MC-173P.O. Box 13087Austin, TX 78711-3087

Dwight Russell, Technical StaffTexas Commission on Environmental QualityWaste Permits Division, MC-124P.O. Box 13087Austin, Texas 78711-3087

FOR THE OFFICE OF PUBLIC ASSISTANCE

Brian Christian, DirectorTexas Commission on Environmental QualityEnvironmental Assistance DivisionPublic Education Program, MC108P.O. Box 13087Austin, Texas 78711-3087

FOR THE OFFICE OF PUBLIC INTEREST COUNSEL

Vic McWherter, Public Interest CounselTexas Commission on Environmental QualityPubic Interest Counsel, MC-103P.O. Box 13087Austin, Texas 78711-3087

FOR ALTERNATIVE DISPUTE RESOLUTION

Kyle LucasTexas Commission on Environmental QualityAlternative Dispute Resolution, MC-122P.O. Box 13087Austin, Texas 78711-3087

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REQUESTORS

Naresh S. MathurAnjuli Mathur1649 McGee LaneCarrollton, TX 75010-3225

Lynn Stein4337 Rubery Dr.Carrolton, TX 75010-1149

Luke T. An1537 Bastrop Dr.Carrollton, TX 75010-6424

The Honorable Jane NelsonState Senator, The Senate of the State of TexasP.O. Box 12086Austin, TX 78711-2068

The Honorable Burt R. SolomonsTexas House of RepresentativesP.O. Box 2910Austin, TX 78768-2910

Burt R. SolomonsP.O. Box 117264Carrollton, TX 75011-7264

City of LewisvilleJames B. Blackburn, Jr.4709 Austin St.Houston, TX 77004-5004

City of CarrolltonCelina RomeroP.O. Box 1149Austin, TX 78767

Ramkumar Babu Subbaraj2108 Ironside Dr.Lewisville, TX 75056-4212

Clint Tomlinson3801 Trailview Dr.Carrollton, TX 75007-6286

PBH Bella Vida, LLCLeilani Soto777 Brickell Ave Ste. 1200Miami, FL 33131-2867

PBH Bella Vida, LLCScott Deatherage1601 Elm St, Ste 3000Dallas, TX 75201-4757

PBH Bella Vida, LLCNisha Bhatia777 Brickell Ave, STE 1200Miami, FL 33131-2867

Mark S Connolly3812 Kelly Pl.Carrollton, TX 75007-2000

April Black3831 Cibola Trl.Carrollton, TX 75007-6239

Bella Vida Gardens Associates, LLCSucharash Bella Vida, LLCElizabeth Deitzmann999 Waterside Dr.Norfolk, VA 23510-3300

Bella Vida Gardens Associates, LLCSucharash Bella Vida, LLCDavid Lindley999 Waterside Dr., Ste. 2300Norfolk, VA, 23462

Virginia Ann Monreal1200 Rooney Ln.Carrollton, TX 75007-1054

Clifford Liston Dunn1429 Meadow Vista Dr.Carrollton, TX 75007-6046

Michael H. Keith2601 Lady Vivian Ln.Lewisville, TX 75056-5401

Mike Petty2624 Sir Gawain Ln.Lewisville, TX 75056-5718

Kevin Gardner1220 Indian Run Dr., Apt. 1024Carrollton, TX 75010-1194

ATTACHMENT 1

Denton Central Appraisal District | Details https://www.dentoncad.com/home/details?search=199784&year=2017

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tceq docket no. 2017-0688-msw application by before … · 2017. 8. 1. · §55.209(d ), (e ), and...

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