United Resource Recovery, Inc. v. Texas Water Com'n

• Decision Date: 14 August 1991
• Docket Number: No. 3-90-209-CV,3-90-209-CV
• Citation: 815 S.W.2d 797
• Parties: UNITED RESOURCE RECOVERY, INC., Appellant, v. TEXAS WATER COMMISSION, et al., Appellees.
• Court: Texas Court of Appeals

Page 797

815 S.W.2d 797

UNITED RESOURCE RECOVERY, INC., Appellant, v. TEXAS WATER COMMISSION, et al., Appellees.

No. 3-90-209-CV.

Court of Appeals of Texas Austin.

Aug. 14, 1991.

Rehearing Overruled Oct. 16, 1991.

Bruce Bigelow, Blazier, Rutland & Lerner, Austin, for appellant.

Jim Mattox, Atty. Gen., Celina Romero, Asst. Atty. Gen., Austin, for Texas Water Com'n.

Philip F. Patman, Patman and Patman, Austin, for James Sterling and Boling Production Co., Inc., intervenor/appellee.

J. Mark Lawless, Austin, for Wharton and Fort Bend Counties, Texas, and Concerned Citizens Against Pollution, intervenors/appellees.

Before CARROLL, C.J., and JONES and SMITH, JJ.

SMITH, Justice.

The Texas Water Commission ("the Commission") issued an order denying six applications for permits that would authorize United Resource Recovery, Inc. ("URR") to operate a hazardous waste disposal facility utilizing injection wells. URR sued the Commission in district court for judicial review of the order. The district court affirmed the order and URR has appealed to this Court. We will affirm the judgment.

BACKGROUND

URR proposed to construct a hazardous waste disposal facility with two components: (1) a surface facility where liquid hazardous wastes would be blended with fly ash and a secret catalyst (F2S) to create a slurry; and (2) leached-out caverns in the Boling Salt Dome into which the hazardous waste slurry would be injected for storage.

In August 1983, URR filed six applications for the following permits: (1) a hazardous waste permit required to operate a surface facility pursuant to the Texas Solid Waste Disposal Act, Tex. Health & Safety Code Ann. §§ 361.001-361.345 (1990); (2) four injection well permits required for solution mining and hazardous waste injection pursuant to Tex. Water Code Ann. §§ 27.001-.105 (1988 & Supp.1991); and (3) one water quality discharge permit required for discharge into waters from a surface stormwater collection system and retention pond pursuant to the Tex. Water Code Ann. §§ 26.001-.407 (1988 & Supp.1991). Because URR needed all six permits to operate the proposed waste disposal facility, the Commission consolidated the permit hearings. See 31 T.A.C. § 263.20 (1989). After holding an evidentiary hearing in 1986, the Commission approved the applications.

Several protestants sued in district court for judicial review of this decision. The district court purported to "dissolve" the Commission's order because it was not final; URR had failed to demonstrate the financial assurance required to secure its obligation to plug the wells and properly close the surface facility. See Browning-Ferris Inc. v. Brazoria County, 742 S.W.2d 43, 54 (Tex.App.1987, no writ). We interpret the district court's judgment as a dismissal for want of jurisdiction, owing to the court's conclusion that the Commission's order was not final. See Administrative Procedure and Texas Register Act, Tex.Rev.Civ.Stat.Ann. art. 6252-13a, § 19(a) (1991) ("APTRA").

When URR submitted financial assurance instruments in May 1988, the Commission approved the permit applications for the second time. The protestants again brought suit in district court. This time the district court reversed the order because the Commission had failed to reopen the evidentiary hearing to consider the adequacy of the financial assurance instruments and had failed to find that URR had made a satisfactory showing of financial assurance.

The applications were again before the Commission in 1989. Chairman Wynne, a Commission member who had not participated in earlier considerations of the applications, stated that he would consider the merits of the proposed waste disposal facility, as well as determining the adequacy of URR's financial assurance. Wynne also asked the public-interest advocate, as a party to the hearing, to prepare a report considering the need for, the viability of, and the benefit to be conferred on the public by the proposed operation.

The report of the public-interest advocate urged the Commission to deny the injection well permits because URR had failed to demonstrate that fresh groundwater would be protected from the pollution that could occur as a result of the hydrologic and structural instability of the Boling Salt Dome. The Commission held an evidentiary hearing and, in August 1989, issued an order denying all six permit applications because URR had failed to show that groundwater would be protected by proper safeguards if the slurry were deposited in the proposed injection wells.

URR combines for argument its first two points of error complaining that the Commission acted in an arbitrary and capricious manner by failing to adopt sufficient underlying findings of fact to support the denial of the injection well permits, and by failing to make or adopt separate findings of fact to support the denial of the hazardous waste and water quality discharge permits. See APTRA § 19(e)(6). In its third point of error URR attacks the order as not supported by substantial evidence. See Id. § 19(e)(5). In points of error four and five URR complains that the Commission measured the permit applications against a new standard for solidification at the evidentiary hearing and failed to give proper notice that the new standard would replace the "paint-filter test." See APTRA § 19(e)(1)-(3). We now address appellant's first three points of error.

FINDING OF FACT NO. 17

In response to URR's first point of error, we review the sufficiency of the Commission's findings under section 16(b) of APTRA. Section 16(b) requires the Commission to issue a final decision that includes separately stated findings of fact and conclusions of law. "Findings of fact, if set forth in statutory language, must be accompanied by a concise and explicit statement of the underlying facts supporting the findings." APTRA § 16(b). Proper underlying findings of fact should be "clear, specific, nonconclusory, and supportive of the ultimate statutory finding." Texas Health Facilities Comm'n v. Charter Medical-Dallas, 665 S.W.2d 446, 452 (Tex.1984). They should not be mere recitals of testimony or summations of the evidence. Id.

The Texas Water Code sets forth the statutory criteria the Commission must consider before it issues an injection well permit. The Commission must find that the applicant will use proper safeguards to adequately protect fresh ground and surface water from pollution. Tex. Water Code Ann. § 27.051(a)(3) (1988). The Commission addressed this requirement in finding of fact number 17 ("Finding No. 17"), an ultimate finding of fact set forth in statutory language:

Section 27.051(3) [sic § 27.051(a)(3) ] provides that the Commission may grant an application and issue a permit if, with proper safeguards, fresh groundwater can be protected. However, there is not a preponderance of evidence in the record that groundwater can be adequately protected.

Following the mandate in APTRA § 16(b), the Commission provided seventeen findings of underlying or basic fact to support this finding of ultimate fact.

To be precise, Finding No. 17 represents the Commission's failure to find that URR would adequately protect fresh groundwater. APTRA § 16(b) only requires the Commission to state those findings that support its ultimate findings; it is not required to state facts that it rejected in reaching its conclusion. Pedernales Elec. Coop., Inc. v. Pub. Util. Comm'n, 809 S.W.2d 332, 337 (Tex.App.1991, no writ). Nevertheless, we will address URR's contention that Finding No. 17 is not reasonably supported by sufficient underlying findings of fact.

There is no precise form in which an agency must articulate its underlying findings. Goeke v. Houston Lighting & Power Co., 797 S.W.2d 12, 15 (Tex.1990). Moreover, the reviewing court may not subject the agency's order to some "hypertechnical standard of review." Id., citing State Banking Board v. Allied Bank Marble Falls, 748 S.W.2d 447, 449 (Tex.1988). We require underlying findings of fact to ensure a serious appraisal of the facts by an agency. Id. at 452. Additionally, we must determine whether the underlying findings inform the parties and the courts of the basis for the Commission's decision so that the parties may intelligently prepare an appeal and the courts may properly exercise their review function. Id. at 449.

In sub-findings of fact 17(a)-(q), the Commission found that URR did not meet its burden of proving that:

* the secret mixing compound, F2S, would properly solidify the hazardous waste

* the slurry would effectively pour into the salt caverns and solidify after reaching the cavern bottom

* the slurry would maintain proper contact with the salt cavern walls to avoid disturbances affecting permeability.

The Commission further found that URR had not tested the mixture thoroughly enough to:

* predict long-term effects

* determine the amount of hazardous waste, if any, that would remain available to the environment

* demonstrate the use of kiln dust as an alternative to fly ash in the mixing procedure.

The Commission also found that persons with a financial interest in the operation conducted the scientific studies on the special catalyst's character and performance. This reflected the Commission's concern about the weight to be given to the testimony and conclusions of URR's expert witnesses. The Commission also found that fresh water existed in aquifers located above the proposed caverns. These aquifers would be at risk for pollution if the well-casings cracked or were severed during injection.

We conclude that the findings of basic fact supporting Finding No. 17 are clear and specific; they contain material facts related to the Commission's statutory duty to protect groundwater. The underlying findings reflect the Commission's concern about the experts' credibility, the inadequate testing of the slurry, and the integrity of the salt formation. Moreover, they specifically reflect the Commission's...