Jeremy L. Dillon
RW Monitor
1/9/2015
A Texas state court of appeals denied last week a motion for re-hearing in the Sierra Club’s challenge against the byproduct disposal permit issued to Waste Control Specialists by the Texas Commission on Environmental Quality. The same court last year denied the Sierra Club’s appeal concerning TCEQ’s denial to hold a contested-case hearing during the permitting process, an action, the Sierra Club argued, subverted stakeholders’ ability to voice their opposition to the permit. The court decided in that case that it is up to TCEQ as the regulatory body to decide what affects public safety, and if TCEQ decides a contested hearing is not warranted, that is its lawful discretion, an argument upheld in last week’s decision. “In making a decision regarding affected-person status, TCEQ enjoys the discretion to weigh and resolve matters that may go to the merits of the underlying application, including the likely impact the regulated activity—here, underground disposal of low-level radioactive waste—will have on the health, safety, and use of property by the hearing requestor and on the use of natural resources,” the court opinion said. “Having determined that TCEQ’s decision to deny Sierra Club’s request for a contested-case hearing is supported by the administrative record, we reverse the district court’s judgment and render judgment affirming TCEQ’s decision to deny the hearing request.”
The Sierra Club offered what it deemed new evidence in the form of two internal TCEQ memos written in 2007 by TCEQ staff members that would show a contested-case hearing is warranted. The memos showed a dissent against granting the permit, but the court decided as long as the TCEQ commissioners knew about the dissent and still decided against holding a hearing, the memos did not have any bearing. “Stated another way, even without the memos in front of them, the TCEQ commissioners were aware that some TCEQ staff disagreed with the Executive Director’s recommendation to issue the license,” the court’s opinion said. “Accordingly, we cannot say that having these two staff memos in evidence would have caused the agency to reach a contrary conclusion.” It is not known at this time if the Sierra Club will pursue the case further. The Sierra Club did not return calls for comment this week.
