In case on remand from the Texas Supreme Court, the Austin Court of Appeals has reversed a district court’s judgment reversing TCEQ’s order granting a permit to a coal mining company. The Austin Court of Appeals previously affirmed the trial court’s reversal and remand based on its finding that the application was approved for the wrong applicant. TCEQ and the company argued in vain that the agency’s rule define “operator” as “the person responsible for the overall operation of the facility.” 30 TAC ^305.2(24), and that company satisfied that definition. To the contrary, the court of appeals held that for purposes of permit applications (Rule 305.43(b)), “operator” means the entity personally responsible for causing the facility to function. It relied on both the language of the rule, which requires an “operator” to file the permit application if that person is distinct from the “owner,” and on the court’s 2020 decision in Heritage on the San Gabriel Homeowners Ass’n v. TCEQ, 393 S.W.3d 417, pet. denied. In that case, however, the court ruled that Waste Management properly filed a permit application as operator of a landfill owned by Williamson County.

TCEQ and the company appealed that decision to SCOTX, which held that TCEQ’s determination that the company was both the owner and “operator” of the mine was supported by substantial evidence. Texas Comm’n on Env’t Quality v. Maverick County, 642 S.W.3d 537, 548 (Tex. 2022). SCOTX sent the case back to the court of appeals for consideration of four other issues raised by the permit contestants—Maverick County, the City of Eagle Pass, the Environmental Defense Fund, and several private landowners—that the court of appeals did not reach in its initial

The pertinent facts of Texas Commission on Environmental Quality and Dos Repúblicas Coal Partnership v. Maverick County, City of Eagle Pass, Environmental Defense Fund, Walter Herring, Ernesto Ibarra, Gabriel de la Cerda, Mike Hernandez, Boulware and Anson Family, Ltd., and Maverick County Environmental and Public Health Association (No. 03-17-00785-CV) are these. Dos Republícas (DRCP) owns a bituminous coal mine in Maverick County, which it bought from a previous owner in 2000. In 2009 DCRP contracted with Camino Real Fuels, LLC (CRF) to operate the mine. In 2013 the Railroad Commission renewed and issued a surface mining permit to DCRP and approved CRF as operator. DCRP’s predecessor obtained a TPDES (discharge of industrial wastewater) permit in 1994 and renewed the permit in 2001, 2006, and 2011. In 2013 DCRP applied to TCEQ for renewal of the permit. The appellants contested the permit, and TCEQ referred the case to SOAH.

A four-day contested case hearing took place in November, 2015 on five issues: (1), whether CRF, the operator, should have applied for the permit instead of DCRP; (2) whether TCEQ properly conducted its antidegradation review; (3) whether water quality based effluent limit for aluminum and boron should be imposed in the permit; (4) whether chronic effluent limits are needed at certain outfalls; and (5) whether TCEQ, by approving the draft permit, thereby approved a legal discharge route on private property not owned or controlled by DCRP. The ALJs recommended approval of the permit with modifications, and the TCEQ issued the permit in July 2016. The contestants appealed to Travis County district court. The district court reversed TCEQ’s final order and remanded on the basis that CRF should have filed the application as operator, not the owner DCRP. The trial court, however, affirmed the final order on the remaining four issues.

The court of appeals affirmed the trial court on all issues and rendered judgment in favor of TCEQ. It determined that substantial evidence supported the agency’s actions with respect to the antidegradation review, effluent limits, chronic effluent limits, and the discharge route. The court’s analysis is interesting in its review of TCEQ’s permit requirements for a new TPDES permit with no existing discharge. The county and other protestants attempted to argue that stormwater discharge from the mine would degrade nearby streams and that TCEQ should have imposed stricter toxicity limits. Based on TCEQ’s evidence, however, the stream flows were so intermittent in nature (they ran only after heavy rains) and that heavy stormwater runoff was so infrequent that the agency could not justify the “fishable/swimmable” level of controls. A lessee of one of the landowners also claimed that the discharge route cut across a small sliver of the leased property, but the court noted that for purposes of the permit, all TCEQ had to determine was whether the applicant has a “good faith claim to the property.” That appeared to be the case here, so the court, unwilling to intervene in judging the credibility of witnesses, deferred to the agency.

The decision in favor of the agency ends a permitting process that commenced in 2013 and passed through a contested case hearing, district court, the court of appeals (twice), and SCOTX. While the vast majority of permits obviously don’t follow such a tortuous path, one wonders what all of this cost and if there is any way to speed up the process. Justice does take time, but time is money, and for a business that has to obtain a permit in order to do business, this case must seem to have taken an eternity just to get back to the same place.

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