North Alamo Water Supply Corp. v. Texas Dept. of Health

• Decision Date: 03 June 1992
• Docket Number: No. 3-91-181-CV,3-91-181-CV
• Citation: North Alamo Water Supply Corp. v. Texas Dept. of Health, 839 S.W.2d 448 (Tex. App. 1992)
• Parties: NORTH ALAMO WATER SUPPLY CORPORATION, Appellant, v. TEXAS DEPARTMENT OF HEALTH and Browning-Ferris, Inc., Appellees.
• Court: Texas Court of Appeals

Page 448

839 S.W.2d 448

NORTH ALAMO WATER SUPPLY CORPORATION, Appellant, v. TEXAS DEPARTMENT OF HEALTH and Browning-Ferris, Inc., Appellees.

No. 3-91-181-CV.

Court of Appeals of Texas Austin.

June 3, 1992 Appellant's Motion for Rehearing Denied Aug. 26, 1992.

J.W. Dyer, Jarvis & Kittleman, P.C., McAllen, for appellant.

Dan Morales, Atty. Gen., Celina Romero, Cynthia Woelk, Asst. Attys. Gen., Austin, for Texas Dept. of Health.

J.B. Ruhl, Bruce A. Morris, Fulbright & Jaworski, Austin, for Browning-Ferris, Inc.

Before JONES, KIDD and B.A. SMITH, JJ.

BEA ANN SMITH, Justice.

North Alamo Water Supply Corp. (North Alamo) appeals a district court judgment affirming the Texas Department of Health's (the Department's) decision to permit Browning-Ferris, Inc. (Browning-Ferris) to develop a solid-waste disposal facility in South Texas. North Alamo raises numerous points of error, alleging due process violations, lack of substantial evidence, and error pertaining to certain evidentiary issues. We overrule all of these points and affirm the judgment of the district court.

THE CONTROVERSY

In 1987 Browning-Ferris applied to the Department for a permit to construct and operate a landfill as a municipal solid waste disposal facility in Hidalgo County. The Solid Waste Disposal Act, Tex.Health & Safety Code Ann. §§ 361.001-.510 (Pamph.1992) governs the management and control of solid waste materials in this state. Id. at § 361.002. The Act provides that, subject to certain exceptions, the Department of Health may require and issue permits authorizing and governing the construction, operation, and maintenance of solid waste facilities over which it has jurisdiction. Id. § 361.061.

Browning-Ferris's application for the permit was challenged by various entities, including North Alamo, a non-profit water supply corporation which owns a water reservoir and treatment facility within a quarter-mile of the proposed landfill. A water transmission line owned by North Alamo actually crosses the proposed landfill site. After lengthy hearings on the application, the Department issued Browning-Ferris a permit on September 19, 1988. The permit included a number of special provisions; Special Provision E especially concerned North Alamo and the other contesting parties:

The seasonal high water table beneath the proposed site is established ... at three (3) feet, and the liner design and soil balance shall be revised accordingly.... [P]rior to any excavation on site for waste disposal purposes, the permittee shall submit to the Department the appropriate revised narrative portions, calculations, and drawings and other plans which may require revision as a result of the above limitation.

In seeking to overturn the Department's decision, North Alamo argued in the district court that a permit conditioned upon Special Provision E's revisions was not a final order. North Alamo asserted that Special Provision E required material alterations to the landfill design plans, but failed to afford the contestants any opportunity to challenge the revisions, thus denying them due process of law. In addition, North Alamo asserted that the findings of fact upon which the agency based its permit were contradictory and unsupported by the evidence. The district court upheld the Department's decision to grant the permit to Browning-Ferris.

On appeal, North Alamo brings twelve points of error. In the first five points, it complains of the district court's exercise of jurisdiction and assails particular evidentiary rulings. In the remaining seven points of error, North Alamo attacks the Department's findings of fact, as well as the Department's failure to find certain other facts.

ANALYSIS

The "Finality" Issue.

We begin by addressing North Alamo's third point of error claiming that the permit issued was not a final order. North Alamo argues that because the permit was conditioned on the revisions set forth in Special Provision E, it was not a final agency order subject to judicial review. We disagree.

This Court has recognized that an agency permit may contain conditions that do not preclude its review as a final agency order. See Walker Creek Homeowners Ass'n v. Tex. Dep't of Health Resources, 581 S.W.2d 196, 198 (Tex.Civ.App.1979, no writ). In Walker Creek this Court held that "agencies may set certain conditions in a permit which must be satisfied before operation under the permit may commence." Id. at 198. We also limited the conditions that an agency may impose and still have issued a final order to those conditions not necessitating further agency approval. Id. Because the conditional permit in Walker Creek expressly required further agency approval, we held that it was not a final order subject to judicial review. In Browning-Ferris, Inc. v. Johnson, 644 S.W.2d 123 (Tex.App.1982, writ ref'd n.r.e.), this Court subsequently applied the Walker Creek principles to a state agency's grant of a waste-disposal facility permit. In Johnson, however, we concluded that the conditional permit was final because it did not require subsequent agency approval. See id. at 126-27.

The language of the contested permit before us today requires no subsequent approval from the Department. Rather, it requires only that Browning-Ferris submit to the Department "the appropriate narrative portions, calculations and drawings and other plans which may require revision as a result of the above limitation." See Special Provision E, supra page 450. North Alamo nevertheless argues that Special Provision E impliedly requires subsequent approval by the Department. We find this argument unpersuasive within the context of the overall permitting process. The Department's permit requires Browning-Ferris to comply with: (1) the permit's other express provisions, (2) the Solid Waste Disposal Act, and (3) the applicable agency regulations. ¹ Special Provision E establishes a seasonal high-water table of three feet and dictates certain design revisions to accommodate this change in the water table. The revisions must meet the standards set forth in other provisions of the permit and in the Department's regulations. Otherwise, Special Provision E does not expressly or impliedly require any agency approval of the revisions. Rather, the Department's role is limited to ensuring that the revisions comply with the applicable statutes and regulations. See id. at 128; Solid Waste Disposal Act, Tex.Health & Safety Code Ann. §§ 361.221-.303 (Pamph.1992) (discussing enforcement of orders and permits); see also 25 Tex.Admin.Code. § 325.222 (1989) (Enforcement Policy). Because nothing in the provision requires subsequent agency approval, we conclude that the permit is a final agency order. We overrule North Alamo's third point of error.

Claims of Due Process Violations.

In its sixth and eighth points, North Alamo claims that because it was not given the opportunity to assail any of the design revisions, North Alamo was denied its rights to due process. The seventh point of error alleges that the Department's own rules proscribe issuing conditional permits. Because North Alamo participated in hearings on the contested permit and because the revisions required by Special Provision E did not call for subsequent agency approval, we believe North Alamo received all the process it was due.

This Court has previously held that due process requires but one adequate hearing in administrative proceedings. Johnson, 644 S.W.2d at 127 (citing English Freight Co. v. Knox, 180 S.W.2d 633 (Tex.Civ.App.1944, writ ref'd w.o.m.)). Prior to issuing this permit to Browning-Ferris, the Department conducted hearings which addressed, among other things, the design of the landfill liner. North Alamo participated in those hearings and voiced its concerns. The Department subsequently required some revisions to the liner design to address North Alamo's concerns about the water table below the proposed landfill.

We believe the hearings have afforded North Alamo due process. North Alamo participated in the procedures which established a three-foot seasonal high-water table and required a more stringent liner design to protect this water table. Special Provision E requires Browning-Ferris to redesign its liner to accommodate this revised water table; compliance requirements are set forth in the Solid Waste Disposal Act and the Department's own regulations. The Department's sole remaining role is to ensure compliance with the applicable statutes and regulations. No additional hearings are required. We overrule North Alamo's sixth and eighth points of error.

In its seventh point, North Alamo complains that 25 Tex.Admin.Code § 325.95(c) (1989) prohibits issuance of a permit with conditions. After reviewing the regulation, we detect nothing to support the claim that the Department violated its own procedures; indeed, the regulation actually countenances the use of special provisions where appropriate. See id. Furthermore, we have previously noted in Walker Creek that the Solid Waste Disposal Act specifically approved the issuance of conditional permits: "The permit shall include ... the terms and conditions on which the permit is issued...." Walker Creek, 581 S.W.2d at 198 (citing 1969 Tex.Gen.Laws, ch. 405, § 4(e)(2), at 1322 (Tex.Rev.Civ.Stat.Ann. 4477-7, § 4(e)(2), since repealed and codified at Tex. Health & Safety Code Ann. § 361.087(3) (Pamph.1992)). We overrule appellant's seventh point.

District Court Decisions on Discovery and Expert Testimony.

North Alamo sought to introduce evidence in the district court supporting its claim that the Department's decision to include Special Provision E violated North Alamo's due process rights. In points of error one, two, four and five, North Alamo argues that the district court's refusal to allow the requested discovery or to admit the expert testimony constituted an abuse of discretion. We overrule each of these points.

As a threshold matter, we note that a district court...