On March 13th, 2017, the State of Texas Office of Public Interest Counsel recommended to the TCEQ that the Application be DENIED for the 130 Environmental Park Landfill!
The Office of Public Interest Counsel (OPIC) was created by the Legislature to ensure that the public’s interest is represented in issues considered by the Texas Commission on Environmental Quality (TCEQ).
From the Public Interest Counsel’s findings and recommendation:
“Unfortunately, 130 Environmental Park LLC refused to comply with this basic requirement – preventing a full review – as well as provided false or misleading information to the Executive Director [of TCEQ.] Therefore, the PERMIT MUST BE DENIED.”
Page 2, ¶ 2, emphasis supplied)
“Ultimately, OPIC finds that the failure to disclose the ownership role of Green Group Holdings LLC as well as list subsequent information about that organization’s subsidiaries and sold waste sites represents at a minimum a failure to satisfy the evidence of competency and compliance history requirements and at worst FALSE OR MISLEADING STATEMENTS TO THE COMMISSION.”
(Pages 7-8, emphasis supplied)
“The Applicant [130 Environmental Park] bears the burden of proving that its application complies with all applicable statutory and regulatory requirements. OPIC finds that the Applicant DID NOT MEET THIS BURDEN with respect to evidence of competency, compliance history, and land use compatibility. Most notably OPIC finds that the Applicant provided either FALSE OR MISLEADING INFORMATION about the facility’s ownership to the Executive Director during technical review. For this reason, as well as its failure to satisfy the burden of proof on those issues, OPIC respectfully recommends the APPLICATION BE DENIED.”
(Page 19, ¶ 2, emphasis supplied)
Here is the complete 21-page brief entitled, Office of Public Interest Counsel’s Exceptions to Proposal for Decision.
THE DUMP IS NOT A DONE DEAL!
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Lockhart – Home of the Tallest Tower of Trash in Texas?!
Watch Out! Your county may be about to give away public rights to stop or limit a massive 24-hour-a-day landfill proposed for the outskirts of Lockhart.
Caldwell County, along with Environmental Protection in Caldwell County (otherwise known as EPICC and comprised of members of our community), participated in a lengthy contested case process to oppose a permit to operate and construct a landfill, sought by 130 Environmental Park, a subsidiary of the Atlanta-based company, Green Group Holdings.
In this proceeding, the County argued that the landfill was inappropriately placed next to homes and in proximity to a school in an area of the County that is growing – and that odor would be blown by the wind from the 175-foot mound of trash into the surrounding area. The County objected to the shoddy work done by the landfill company on drainage and floodplain issues and its failure to comply with County regulations. It was revealed that the engineers for the landfill company had intentionally destroyed all their original geological data (in violation of professional and legal norms) and subsequent drilling by those opposing the permit revealed discrepancies between what the 130 Environmental Park geologists reported were there and what was actually at the site.
The County and EPICC so far have won a partial victory which is threatened if the County drops out or worse, capitulates by contract with the landfill company. So far, the judges who heard the case agreed that 130 Environmental Park’s application for the permit “does not comply with a number of requirements in the TCEQ’s rules.” The judges also stated that they “have concerns regarding the compatibility of the Landfill with the Site 21 Reservoir” and noted that the TCEQ Commissioners “must determine whether situating a [solid waste] Landfill in very near proximity to the 100-year floodplain, immediately upstream of a flood control structure needed to protect human life and downstream properties, is a compatible land use.”
The judges also recommended that the operating hours be reduced from the 24-hour nonstop schedule proposed by the landfill company.
The judges, however, also made some alarming and astonishing rulings. When presented with documentation of the absence of competence of the landfill company, the judges responded that the law did not require permit applicants to prove they are competent to construct and operate a landfill! The competency and character of Green Group Holdings and their array of landfills is a big issue here. 130 Environmental Park destroyed scientific data collected here in Caldwell County.
In Uniontown, Alabama, a Green Group Holdings landfill was used for toxic industrial fly ash and when local neighbors complained about pollutants running off from the site, Green Group Holdings filed suit seeking $30 million against these neighbors in an attempt to squash their expressions of free speech. Here in Texas, in Waller County, another Green Group Holdings landfill had their application rejected by TCEQ because an on-site visit revealed abundant, shallow water at the site – which was inconsistent with what they had represented in the application.
This landfill company needs to be closely watched and monitored by Caldwell County and its citizens.
THE PROCESS IS NOT OVER YET. The three TCEQ Commissioners have not yet made their final decision; this decision won’t be made for several months. This future decision by the TCEQ Commissioners may be appealed by the landfill company, EPICC and others. The County needs to stay in the fight.
Yet, recently, some on the Caldwell County Commissioners Court have talked about withdrawing and giving up on this contested process—EVEN THOUGH NOTHING HAS BEEN PROMISED TO THE COUNTY IN RETURN FOR ITS WITHDRAWAL! If these commissioners get their way, all of the work and money put into representing the County—by its attorneys and engineer—will have been for nothing, as the County will no longer have a say in the TCEQ process.
These same commissioners have indicated that after the County gives up and withdraws from the contested case proceeding, it will sign a contract with the landfill company, a so-called Host Agreement. A Host Agreement was proposed to Caldwell County by the landfill company in September of 2013. Commissioners expressed significant concerns because many of the provisions contained so many loopholes and limitations that the County would get nothing much in return for the County essentially waiving its normal governmental powers and authority over the landfill.
Now, Commissioners Ed Theriot and Hoppy Haden and County Judge Schawe are ready to throw in the towel at TCEQ before any new negotiations regarding a Host Agreement have even begun, let alone been consummated. Commissioner Theriot, in particular, is so eager to withdraw from the TCEQ proceedings that he proposed having a special meeting so that a vote could be taken regarding the County’s participation in the TCEQ proceedings as soon as this week— even though there are still legal briefs to be filed regarding the judges’ proposed decision.
Perhaps we shouldn’t be too surprised by this naïve approach to the landfill company, considering that two of these commissioners are new to the job and are still learning the legal ropes. For instance, it was recently discovered that Commissioner Haden failed to file his final campaign finance report during the final phase of the campaign – the one that discloses who contributed to Commissioner Haden’s campaign and how much. It was finally filed two months late, and puts him in the position of being potentially liable for civil fines. While we can perhaps understand Commissioner Haden’s confusion regarding the legal disclosure requirements, we cannot afford to have any similar mistakes regarding the landfill proceedings or the negotiations of a complex host agreement.
The whole process of negotiating a deal with 130 Environmental Park needs to be undertaken slowly and with much skepticism. Yet certain County Commissioners are proposing to proceed with negotiations without the involvement of their own attorney, the one attorney most familiar with the issues who has represented the County throughout the contested case process.
Rushing forward without experienced counsel seems so unwise when there is still much that is unknown. Does Commissioner Theriot own property close to the landfill? There is a provision in the last version of the Host Agreement that would provide for compensation for nearby property owners through a buy-out by 130 Environmental Park. Is Commissioner Theriot going to recuse himself from involvement on any decision to give up the County’s rights against 130 Environmental Park and whether to enter into a Host Agreement as would appear to be required under state conflicts-of-interest law found in Local Government Code section 171.004?
At least one of the commissioners has the requisite experience and knowledge of the unique and specific facts of this case, and that is Commissioner Joe Roland. He has been involved in these landfill proceedings from the beginning, and his precinct includes the proposed landfill site as well as the folks who would be most adversely impacted by the landfill if it were constructed. It stands to reason that Commissioner Roland’s thoughts and opinions regarding the proposed landfill should be respected. But several on the commissioners court have not only failed to heed Commissioner Roland’s warnings regarding the risks presented by a landfill at the proposed location—right near a high-hazard dam and adjacent to a floodplain—but they have plain disrespected Commissioner Roland, repeatedly leaving him out of committees and decision-making processes related to the proposed landfill.
In light of the above—including (1) Green Group Holdings’ history in seeking landfill permits and in operating landfills; (2) its history of disrespecting Caldwell County by presenting the County with a Host Agreement that is nothing short of offensive; (3) the risks associated with siting a landfill at the current proposed location; (4) the County’s investment in presenting its case and its concerns to judges and the TCEQ; and (5) Commissioner Roland’s opposition to the proposed landfill—why would the County want to even consider negotiating an agreement with 130 Environmental Park? Even more importantly, why would the County want a brand new attorney—one unfamiliar with the case, who would have to learn about the case on the County’s dime—to negotiate the Host Agreement, when the County already has an attorney who has been ably representing the County’s interests thus far?
Finally, why give up one of the few pieces of leverage the County has at this point— its participation in the TCEQ proceedings—even before the County has started negotiating a host agreement? None of this makes sense to us. Does it make sense to you?
We are asking you to contact your commissioners and the county judge and to ask them to use common sense, to follow Commissioner Roland’s lead, and to remain in the TCEQ proceedings unless and until a truly beneficial and protective host agreement is presented to the County for consideration in an open meeting, with an opportunity for all Caldwell County constituents to weigh in. People’s lives and livelihoods are at stake here, as well as our natural resources. Let’s not make naïve and hasty decisions that could impact the constituents and especially the children for generations to come.
CONTACT YOUR LOCAL COMMISSIONER TODAY!
County Judge Ken Schawe
(512) (512) 227-0133
Commissioner Hoppy Haden
Commissioner Eddie Moses
Commissioner Ed Theriot
Commissioner Joe Roland
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