Opinion
03-17-00785-CV
07-27-2022
Texas Commission on Environmental Quality and Dos Repúblicas Coal Partnership 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 Appellants//Cross-Appellants, 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 Texas Commission on Environmental Quality and Dos Repúblicas Coal Partnership Appellees//Cross-Appellees,
FROM THE 250TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-16-005038, THE HONORABLE TIM SULAK, JUDGE PRESIDING
Before Justices Goodwin, Baker, and Triana
MEMORANDUM OPINION
Melissa Goodwin, Justice
Dos Repúblicas Coal Partnership (DRCP) and the Texas Commission on Environmental Quality (TCEQ) appeal the district court's judgment reversing TCEQ's order granting DRCP a Texas Pollutant Discharge Elimination System (TPDES) permit for industrial wastewater discharges from the Eagle Pass Mine (the Mine).
After a contested case hearing challenging DRCP's TPDES permit application, the City of Eagle Pass, the Environmental Defense Fund, Walter Herring, Ernesto Ibarra, Gabriel De La Cerda, Mike Hernandez, Boulware and Anson Family, Ltd., and the Maverick County Environmental and Public Health Association (collectively, the Downstream Landowners) and Maverick County (the County) (collectively, with the Downstream Landowners, the Permit Contestants) sued for judicial review of the TCEQ order. The district court reversed the agency order and remanded the cause to the agency on one issue-whether DRCP, the undisputed owner of the Mine, was also properly considered the operator for purposes of submitting the application-but affirmed the TCEQ order in all other respects. DRCP and TCEQ appealed the district court's judgment reversing and remanding the operator issue, and the Permit Contestants cross appealed the district court's judgment affirming the TCEQ order as to all other issues raised. We affirmed the district court's judgment on the operator issue and did not reach the other issues raised on cross appeal. See Texas Comm'n on Env't Quality v. Maverick County, 628 S.W.3d 497, 512 (Tex. App.-Austin 2019), rev'd and remanded, 642 S.W.3d 537 (Tex. 2022). The Texas Supreme Court, however, reversed our decision on the operator issue, concluding that the TCEQ determination that DRCP was not only the owner but also the "operator" of the mine-and therefore the correct permit applicant-was supported by substantial evidence. Texas Comm'n on Env't Quality v. Maverick County, 642 S.W.3d 537, 548 (Tex. 2022). The Texas Supreme Court declined to address the other issues raised by the Permit Contestants in their cross appeal and instead remanded the case to this Court for further proceedings consistent with its opinion. Id. at 551.
In our initial opinion, we concluded that addressing the issues raised on cross appeal would be an "impermissible advisory opinion" when we had already concluded that the permit application "was incomplete because . . . the operator did not submit an application," and we vacated those portions of the district court's judgment. Texas Comm'n on Env't Quality v. Maverick County, 628 S.W.3d 497, 512 (Tex. App.-Austin 2019), rev'd and remanded, 642 S.W.3d 537 (Tex. 2022); cf. also Freightliner Corp. v. Motor Vehicle Bd., 255 S.W.3d 356, 362, 363 n.4 (Tex. App.-Austin 2008, pet. denied) (noting that "[t]he court may find that a single error affected the entire decision-making process such that the agency must have the opportunity to review the case as a whole"). The Texas Supreme Court, however, clarified that "[t]he prudential practice of courts to decline to reach issues not necessary to the disposition should not be confused with the constitutional prohibition on advisory opinions." Texas Comm'n on Env't Quality v. Maverick County, 642 S.W.3d 537, 549 (Tex. 2022). In reviewing our opinion, the Texas Supreme Court noted that the parties disputed whether "the improper-applicant problem can be fixed on remand to the agency without necessarily disturbing TCEQ's findings on other matters." Id. at 550. But the Texas Supreme Court did not resolve the issue of whether we could have declined to reach the other issues on prudential grounds; instead, the Court reversed our decision as to the operator issue and noted that "[o]ne way or another, the court of appeals' judgment will be reversed, and this case will be remanded to the court of appeals for consideration of the remaining issues." Id.
Consistent with the Texas Supreme Court's opinion deciding the operator issue, we reverse the portion of the district court's judgment addressing the operator issue. Because the Texas Supreme Court has resolved the sole issue raised in DRCP and TCEQ's appeal, we address on remand only the issues raised in the Permit Contestants' cross appeal. For the following reasons, we affirm the district court's judgment in all other respects. Thus, we render judgment affirming the TCEQ order in whole. See Tex. Gov't Code § 2001.174(a).
The background recital is taken from TCEQ's unchallenged findings of fact, the undisputed facts in the administrative record, and our previous background description in Maverick County, 628 S.W.3d at 500-02.
DRCP owns the Mine, a subbituminous coal mine in Maverick County, Texas. DRCP's predecessor in interest acquired a wastewater discharge permit for the Mine in 1994, which was renewed in 2001, 2006, and on November 7, 2011 (the Current TPDES Permit). See Tex. Water Code § 26.027(a) (authorizing TCEQ to issue permits "for the discharge of waste or pollutants into or adjacent to water in the state"). The Current TPDES Permit was set to expire September 1, 2015. In 2013, DRCP applied to TCEQ to amend and renew the Current TPDES Permit. The Current TPDES Permit authorized discharges of stormwater and mine seepage water from active mining areas through certain outfalls, imposed effluent limitations, required flow to be monitored and reported, and included additional reporting, notice, monitoring, testing, and record-keeping requirements. In its application, DRCP sought to add certain mining areas and make a boundary change; remove some outfalls; maintain certain current outfalls and add new outfalls for discharging stormwater, wastewater, and mine seepage; and allow water in ponds to be used for dust suppression.
An "outfall" is "[t]he point or location where waterborne waste is discharged from a sewer system, treatment facility, or disposal system into or adjacent to water in this state." 30 Tex. Admin. Code § 305.2(25) (Definitions). Rule citations are to those in effect in 2013, when DRCP filed its application. All citations to title 30 of the Texas Administrative Code are to rules promulgated by TCEQ.
In a contested case hearing before two administrative law judges (ALJs), the following four issues relevant to this appeal were discussed: (1) whether TCEQ properly conducted its antidegradation review, (2) whether water quality based effluent limits for aluminum and boron should be imposed in the permit, (3) whether chronic effluent limits are needed at certain outfalls, and (4) whether TCEQ, by approving the draft permit, was thereby approving an illegal discharge route on private property not owned or controlled by DRCP. The ALJs then issued a proposal for decision (PFD), recommending that the draft permit be granted with a few changes, including "the addition of a boron limit and a requirement that aluminum be monitored." After considering the PFD, TCEQ issued a final order granting DRCP's application. But TCEQ deleted the ALJs' recommended findings on the boron limit and aluminum monitoring requirement and instead added what it called "Other Requirement No. 10," imposing "a robust and meaningful sampling regime" that "would occur periodically over the life of the permit to ensure that the effluent limits and monitoring requirements in the permit reflect the continuing water quality at the site."
DISCUSSION
In four issues on cross appeal, the Permit Contestants challenge the TCEQ order. In the first two issues, the Permit Contestants raise the antidegradation issue and challenge TCEQ's modification of the PFD. In the third and fourth issues, the Downstream Landowners, but not the County, raise the additional chronic effluent limits and illegal discharge route issues.
We review the TCEQ order under the substantial evidence rule to determine whether the Permit Contestants' substantial rights "have been prejudiced because the administrative findings, inferences, conclusions, or decisions" are "in violation of a constitutional or statutory provision;" "in excess of the agency's statutory authority;" "made through unlawful procedure;" "affected by other error of law;" "not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole;" or "arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." Tex. Gov't Code § 2001.174(2)(A)-(F). Our inquiry into whether an agency's decision meets the substantial evidence standard considers whether the evidence supports the agency's determination, asking not whether the decision is correct, but whether the record demonstrates a reasonable basis for the decision. Maverick County, 642 S.W.3d at 547. The contestant bears the burden to overcome the presumption that the agency's findings, inferences, conclusions, and decisions are supported by substantial evidence. Id.
The Antidegradation Issue
In their first issue, the Permit Contestants challenge TCEQ's antidegradation review. The Downstream Landowners claim that DRCP failed to provide the necessary data in its application and that TCEQ therefore did not properly compare relevant data as required by the antidegradation review. Thus, the Downstream Landowners argue, TCEQ's actions related to the antidegradation review were arbitrary and capricious and violated statutory provisions. See Tex. Gov't Code § 2001.174(2)(A), (F). The County, relying on a study by its expert David Flores, argues that TCEQ's findings that certain outfalls were not of "fishable/swimmable" quality and its conclusion that these outfalls did not merit Tier 2 antidegradation review were arbitrary and capricious given the results of Flores's study. See id. § 2001.174(2)(F). We first discuss the Downstream Landowners' argument and then turn to the County's arguments.
The Downstream Landowners' Antidegradation Issue
Rule 305.45 requires a TPDES permit application to include a technical report describing the properties of the proposed wastewater discharges "in enough detail to allow evaluation of the water and environmental quality considerations involved." 30 Tex. Admin. Code § 305.45(a)(8)(B)(ii) (Contents of Application for Permit). TCEQ's 2010 guidance document titled Procedures to Implement the Texas Surface Water Quality Standards (Implementation Procedures) explains, "During the application review, the effluent data provided in the application are compared to the calculated daily average effluent limits." TCEQ's form permit application includes a technical report form with multiple worksheets, including Worksheet 2.0, for providing sampling data that may be pertinent to an antidegradation review. Instructions for Worksheet 2.0 provide: "If the application is for a new discharge, results from similar facilities, treatability studies, design information, or literature sources may be submitted when real effluent analytical data is not available."
DRCP left Worksheet 2.0 of the application blank because there had been no discharges as of the date of the application submission. TCEQ therefore imposed "Other
Requirement No. 10" in its final order to provide this data after discharges occur. As TCEQ explained in its final order:
Rather than include speculative effluent limits or monitoring requirements, the Commission determined that Other Requirement No. 10 in the draft permit should be amended to provide a robust and meaningful sampling regime that will provide TCEQ with effluent data that can be used to evaluate the water quality leaving the mine and allow the Executive Director to establish appropriate effluent limits or monitoring requirements based on that data. The Commission modified Other Requirement No. 10 in the Proposed Order and the draft permit in two ways:
1) the Commission directed that sampling results for the first four sampling events be provided to the Executive Director within 90 days of each of the discharges, rather than all sampling results being provided following the fourth discharge; and
2) the Commission provided for additional sampling of data beyond the first four discharges. The additional sampling would occur periodically over the life of the permit to ensure that the effluent limits and monitoring requirements in the permit reflect the continuing water quality at the site.
Nevertheless, the Downstream Landowners argue that this is insufficient because "the sampling is contemporaneous with the actual discharge."
The Downstream Landowners fail, however, to identify any legal requirement to provide data prior to any actual discharge when the permit is for a new discharge and no real effluent analytical data is available, so long as "enough detail to allow evaluation of the water and environmental quality considerations involved" is provided to satisfy rule 305.45's requirement. See id. The Downstream Landowners cite the Implementation Procedures, which states, "During the application review, the effluent data provided in the application are compared to the calculated daily average effluent limits." (Emphasis added.) But when the application is for a new discharge and no real effluent analytical data is available, the instructions for Worksheet 2.0 state that alternative data "may be submitted," including "results from similar facilities, treatability studies, design information, or literature sources." (Emphasis added.) "May" is a discretionary term; it does not impose a requirement upon the applicant. Cf. Tex. Gov't Code § 311.016(1) ("'May' creates discretionary authority or grants permission or a power."). The Downstream Landowners identify types of data that they think should have been submitted, including groundwater data from the Mine or sampling data from other mines operated by CRF and CRF's parent company. But they do not cite any authority that would require the submission of this data.
Moreover, substantial evidence supports TCEQ's findings of fact that the application was complete-necessarily implying that rule 305.45's requirement was satisfied- and that antidegradation reviews were conducted. TCEQ's staff member Jeff Paull testified in detail as to his antidegradation review. Further, the evidence demonstrated that it was standard practice for TCEQ to impose sampling requirements on future discharges, rather than require estimates for data that does not yet exist. DRCP's expert Lisa Murphy testified that "all of the wastewater is mostly stormwater and the quality of it is very well defined by the federal rules and in Texas" and that accordingly "TCEQ has an understanding of what the effluent characteristics will be." She also testified that "[i]t is common, when a new discharge or a new outfall or an unconstructed facility is permitted, that there is no data submitted and that there is a process that can be used to provide data when there is an out -- a discharge," and that when there is no discharge it is common to leave Worksheet 2.0 blank. DRCP's expert Dr. James Miertschin testified that "[i]t is not unusual for a newly proposed facility or a facility that has not yet commenced operations to submit an application without extensive effluent sampling data" and that in those cases "TCEQ staff rely upon their knowledge of similar wastewaters to develop effluent limitations." Another DRCP expert, Dr. Glass, testified that "[i]t's my experience that for a discharge that does not exist yet," submitting "projected effluent quality" is "not a requirement." Finally, TCEQ's staff member Kara Denney testified that "instead of relying on groundwater," which is not representative of discharges, her "preferred approach is to include Other Requirement 10," which requires a sample after discharges occur, and "then analyze whether that data indicates a need for an effluent limit"-"[t]hat's the TCEQ standard procedure for that" and "that's also what is in the current permit." We therefore overrule the Downstream Landowners' first issue.
The County's Antidegradation Issue
The County argues that TCEQ's decision not to conduct a Tier 2 antidegradation review for certain outfalls that it determined were not of "fishable/swimmable" quality was arbitrary and capricious. TCEQ antidegradation review requirements are found in rule 307.5. See 30 Tex. Admin. Code § 307.5 (Antidegradation). "Degradation" is defined as "a lowering of water quality by more than a de minimis extent, but not to the extent that an existing use is impaired." Id. § 307.5(b)(2). The rule sets out three "tiers" of antidegradation reviews, but the County only challenges TCEQ's decision not to conduct a Tier 2 review. Tier 2 prohibits activities that "would cause degradation of waters that exceed fishable/swimmable quality" without a specific showing of necessity for "important economic or social development." Id.
TCEQ's Implementation Procedures explains that Tier 2 applies to water bodies that have "intermediate, high, or exceptional aquatic life uses." See id. § 307.5(c)(2)(B) ("Tier 2 reviews apply to all pollution that could cause degradation of water quality where water quality exceeds . . . (fishable/swimmable quality). Guidance for determining water bodies that exceed fishable/swimmable quality is contained in the standards implementation procedures."). The Implementation Procedures also references other guidance documents, including the Surface Water Quality Monitoring Procedures (SWQM Procedures) that provide guidance for collecting and analyzing data for aquatic life use surveys. The ALJs concluded that a Tier 2 antidegradation review was not necessary for two tributaries because a higher aquatic life use is not supported in this case. TCEQ agreed, determining that the tributaries at issue are either "intermittent" or "intermittent with pools," "identified as having minimal aquatic life use," and will not degrade waters that exceed fishable/swimmable quality. See id. § 307.4(h)(4) (General Criteria) ("Intermittent streams that are not specifically listed in Appendix A or D of § 307.10 of this title are considered to have a minimal aquatic life except as indicated below in this subsection. . . . Unclassified intermittent streams with perennial pools are presumed to have a limited aquatic life use . . . .").
As an initial matter, the County asserts that "[i]t cannot be said that substantial evidence" supports TCEQ's findings of fact because "the TCEQ final order does not provide the parties or a reviewing court with any of the underlying findings from which it drew its statutory findings." See Tex. Gov't Code § 2001.141(d) (requiring that "[f]indings of fact, if set forth in statutory language, must be accompanied by a concise and explicit statement of the underlying facts supporting the findings"); Texas Health Facilities Comm'n v. Charter Med.-Dall., Inc., 665 S.W.2d 446, 451 (Tex. 1984) ("In general, underlying findings of fact must be such that the reviewing court can fairly and reasonably say that the underlying findings support the statutorily required criteria."). But the County has identified only regulatory language from rule 307.5, not statutory language, at issue in the relevant findings of fact. Cf. Charter Med.-Dall., 665 S.W.2d at 451 (noting that earlier case construction of "an analogous fact-finding requirement in the Savings and Loan Act" held that "[w]hen findings are made in the language of the Rules and Regulations that do not embody statutory language, they need not be accompanied by a concise and explicit statement of the underlying facts" (quoting Lewis v. Gonzales Cnty. Sav. & Loan Ass'n, 474 S.W.2d 453, 457 (Tex. 1971))). The plain language of section 2001.141(d) applies only to statutory findings, not regulatory findings. Id. ("By limiting the fact-finding requirement to findings 'set forth in statutory language,' the legislature has expressed its intention in this matter. We may not impose an additional fact-finding requirement under the guise of statutory construction."). And the Texas Supreme Court has held that additional support of findings of "underlying facts" is required "only when the ultimate fact finding embodies a mandatory fact finding set forth in the relevant enabling act" or when it "represent[s] the criteria that the legislature has directed the agency to consider in performing its function." Id.; see also West Tex. Utils. Co. v. Office of Pub. Util. Couns., 896 S.W.2d 261, 270 (Tex. App.-Austin 1995, writ dism'd) ("An agency's finding of ultimate fact that does not embody a mandatory fact finding set forth in the relevant enabling act need not be supported by findings of basic fact, regardless of how conclusory the finding of ultimate fact may be."). The regulatory antidegradation findings are not statutory findings requiring underlying findings, and therefore we reject the County's argument based on section 2001.141(d).
We also conclude that substantial evidence supports TCEQ's findings that the tributaries at issue have only minimal or limited aquatic life use-thereby not requiring a Tier 2 analysis-and that TCEQ performed antidegradation reviews as required by rule 307.5 and the Implementation Procedures. TCEQ's staff member Paull, who performed the antidegradation reviews, testified that he determined the tributaries at issue were intermittent based on topographic maps and aerial imagery and assigned the presumed aquatic life use for intermittent streams. See 30 Tex. Admin. Code § 307.4(h)(4) (General Criteria) ("Intermittent streams that are not specifically listed in Appendix A or D of § 307.10 of this title are considered to have a minimal aquatic life use except as indicated below in this subsection.").
The only evidence to the contrary identified on appeal is the study conducted by the County's expert Flores. The County argues that Flores determined through a two-day site study that the aquatic life use of the tributaries at issue should be at least intermediate, thereby requiring a Tier 2 review. But TCEQ had substantial evidence to conclude that Flores's study should be given little to no weight, and TCEQ "was free to weigh this and other evidence, and we may not substitute our judgment for [the agency's] on the weight of the evidence." See Entergy Tex., Inc. v. Public Util. Comm'n, 490 S.W.3d 224, 232 (Tex. App.-Austin 2016, pet. denied). Specifically, TCEQ's SWQM Procedures states in the "Sampling Conditions" section:
Collect all biological samples during stable, unscoured flow conditions, ideally when flow is at, or just above, the 7Q2 of a stream-the seven-day, two-year low flow, or the lowest average streamflow for seven consecutive days with a recurrence interval of two years, as statistically determined from historical data. . . . If stream conditions are not stable and do not reflect baseline conditions, reschedule the sampling event. . . . If extreme weather conditions occur, such as significant drought or heavy rains, or if the stream has been dry, allow at least one month of normal flow before collecting biological samples.
Flores testified that he collected data in June and July of 2015. DRCP's witness Dr. Glass testified that "there was very heavy rainfalls in May"; that Flores's "data was collected after a period of extreme rainfall when the streams were not at anywhere approaching a base flow condition"; that the streams "were flowing" and "will not be the same ecosystem as would exist otherwise"; and that "what would exist out there in the middle of the summer is not what exists there after we've had a month of heavy rain." TCEQ's witness Paull testified that the purpose of waiting is "[s]o that normal flow conditions can -- will be resumed before sampling." Substantial evidence exists that "at least one month of normal flow" after the extreme weather conditions of "heavy rain" did not occur for samples to be collected pursuant to TCEQ's guidance procedures. Accordingly, consistent with its sampling collection policy in its SWQM Procedures, TCEQ reasonably could have given little to no weight to Mr. Flores's report when weighing the evidence. We overrule the County's first issue.
The PFD Modification Issue
In their second issue, the Permit Contestants argue that TCEQ violated section 2001.058(e) by deleting the ALJs' recommendation of a boron limit and requirement that aluminum be monitored and by adding additional findings of fact and conclusions of law. Section 2001.058(e) permits an agency to change a finding of fact or conclusion of law made by the ALJ only if the agency determines that (1) the ALJ failed to "properly apply or interpret applicable law, agency rules, written policies provided under Subsection (c), or prior administrative decisions"; (2) the ALJ relied on an incorrect prior administrative decision; or (3) the ALJ made a technical error in a finding of fact. Tex. Gov't Code § 2001.058(e) (requiring that agency also state in writing specific reason and legal basis for change). In its explanation of changes, TCEQ stated that the "ALJs misapplied the Commission's policy" as set forth in its Implementation Procedures. However, the Permit Contestants argue that because TCEQ did not provide the Implementation Procedures to the ALJs until the third day of the hearing and after the Permit Contestants had completed their cases, TCEQ could not rely on the Implementation Procedures to determine that the ALJs had misapplied TCEQ policy. See id. § 2001.058(c) (requiring agency to provide ALJ with written statement of applicable rules or policies), (e)(1) (requiring determination that ALJ misapplied policies to be of "written policies provided under Subsection (c)"). In response, DRCP and TCEQ claim that section 2003.047(m) governs TCEQ's discretion to make changes, not section 2001.058(e), and that the Permit Contestants never raised a section 2003.047(m) challenge and have therefore waived any such complaint. See id. § 2003.047(m) (providing that TCEQ "may amend the proposal for decision, including any finding of fact" but requiring amendments to "be based solely on the record before the administrative law judge" and "be accompanied by an explanation of the basis of the amendment").
This issue concerns the statutory relationship between sections 2003.047 and 2001.058. The Texas Supreme Court, however, has now resolved this dispute, concluding: "Section 2003.047(m) is a self-contained grant of authority specifically crafted for TCEQ. Section 2001.058(e) is a much narrower grant. TCEQ cannot be subject to both-it possesses the broad authority that Section 2003.047(m) specifically grants to it, not the narrow authority of Section 2001.058(e)." Dyer v. Texas Comm'n on Envtl. Quality, No. 19-1104, ___ S.W.3d ___, ___, 2022 WL 2082193, at *9 (Tex. June 10, 2022). The Permit Contestants do not argue that TCEQ failed to comply with the requirements of section 2003.047(m) or that TCEQ's modification was not "based on the record." See Tex. Gov't Code § 2003.047(m). They did not raise this concern in their motion for rehearing; therefore, even if they had raised arguments on the issue in their briefing, they would not have preserved error. See Scally v. Texas State Bd. of Med. Exam'rs, 351 S.W.3d 434, 445 (Tex. App.-Austin 2011, pet. denied) (requiring motion for rehearing to set forth "(1) the fact finding, legal conclusion, or ruling complained of and (2) the legal basis of that complaint"). Accordingly, we overrule the Permit Contestants' second issue and turn to the Downstream Landowners' final two issues.
At oral argument, the Downstream Landowners' counsel conceded that they did not raise a section 2003.047(m) argument: "We did not raise a 2003.047(m) or we didn't cite it in our motion for rehearing. We cited and argued that they violated 2001.058(e) because the justification they provided is that the ALJs misapplied a policy. And that is the exact language from 2001.058(e). That language does not apply or appear at all in 2003.047(m). So that's where our argument in our motion for rehearing went and that's what we are arguing here."
The Chronic Effluent Limits Issue
In their third issue, the Downstream Landowners raise substantial evidence and arbitrary and capricious challenges to TCEQ's decision not to include chronic criteria effluent limits in the permit. See Tex. Gov't Code § 2001.174(2)(E), (F). We conclude that the Downstream Landowners' challenges are unavailing.
TCEQ has promulgated surface water quality standards in rule 307.6 to protect against acute and chronic toxicity. See 30 Tex. Admin. Code § 307.6 (Toxic Materials). The parties agree that TCEQ policy generally "requires chronic criteria effluent limits for discharges into intermittent water bodies within three miles of any water body that is perennial or intermittent with perennial pools" and that "most of the outfalls discharge into intermittent streams within three miles of a perennial water body." However, the ALJs noted that TCEQ's Standard Operating Procedures Manual (SOP Manual) "provides that mining outfalls that discharge on an intermittent and variable basis are typically only assessed for acute criteria" and concluded that "it is unlikely that discharge will occur" on a non-intermittent basis and that there is "no reason to deviate from the ED's standard practice in this case." TCEQ agreed, making findings of fact and conclusions of law that the mine is located in a hot and semi-arid climate; that discharges from all outfalls are intermittent and stormwater-driven; that TCEQ's policy is to assess outfalls that discharge on an intermittent and variable basis as acute aquatic life toxicity only-not for chronic toxicity; that consistent with TCEQ's standard policy, chronic toxicity criteria do not need to be imposed on the mine's discharges because they are expected to be intermittent; and that the draft permit does not need to include chronic toxicity limitations for the active and post-mining area outfalls.
The SOP Manual sets forth the policy that "mining outfalls that discharge on an intermittent and variable basis are typically assessed as a Menu 1 [acute only]." TCEQ hydrologist Jeff Borski testified that "this policy was settled on because most mining discharges follow a consistent pattern . . . they discharge usually only when there's a storm event and when there's a large influx of water." Downstream Landowners' expert Dr. Lial Tischler testified that his understanding of TCEQ policy "is that they don't normally set chronic toxicity limits for an intermittent discharge."
Substantial evidence supports the finding that the discharges are stormwater driven and therefore intermittent and variable and that TCEQ's policy therefore does not require chronic toxicity criteria. Dr. Miertschin testified that "[t]he discharges from the mine will be intermittent, since they will be comprised mainly of stormwater runoff," and the Downstream Landowners' expert Dr. Lial Tischler agreed that "the discharges from this mine are driven by the amount of rainfall that falls within certain areas" and that "the term they're stormwater-driven is an accurate statement." Moreover, Jeff Borski, a TCEQ hydrologist, explained that most mining discharges "are not steady state discharges"; rather, "[t]hey retain water from the mine site, and they discharge usually only when there's a storm event and when there's a large influx of water." Borski explained that the SOP Manual establishes a policy that "was settled on because most mining discharges follow a consistent pattern"-that is, "in most cases in most mining discharges, the assumption is going to be the same, it's going to be very intermittent and variable discharge." Borski stated, "All mining-runoff discharges are assessed under acute aquatic life criteria only. Chronic aquatic life and human health criteria are not assessed because of the highly intermittent nature of these discharges." In drafting this particular permit, Borski explained, he "made [the permit] based on the normal character of mining discharges," and he testified that "this is a typical mining review" and that he "can't think of a mine that [he] worked on, mine permit, that has had anything other than highly intermittent discharges," so that is "how [he] modeled this permit."
The Downstream Landowners' expert Dr. Tischler testified that a discharge of wastewater from the Mine hypothetically could occur for more than 30 continuous days, and TCEQ's expert witness Borski agreed. In their briefing, the Downstream Landowners stated: "In light of the unknown, but potentially extended discharges, TCEQ violated its own policies and procedures by failing to evaluate chronic criteria to ensure protection[.]" However, Dr. Tischler also admitted that he had "never witnessed a 30 consecutive-day discharge, because they didn't have a discharge" and that "the intent is that the discharges will be on an intermittent basis." We conclude that the mere hypothetical possibility that discharges may be continuous or extended-especially when the Downstream Landowners' own expert agreed that the intent is that discharges will be intermittent-does not obviate the substantial evidence supporting TCEQ's finding of fact that the discharges are expected to be intermittent and therefore chronic toxicity criteria do not need to be imposed. See Jenkins v. Crosby Indep. Sch. Dist., 537 S.W.3d 142, 149 (Tex. App.-Austin 2017, no pet.) (noting that substantial evidence "'does not mean a large or considerable amount of evidence'-in fact, the evidence may even preponderate against the agency's finding" (quoting Slay v. Texas Comm'n on Env't Quality, 351 S.W.3d 532, 549 (Tex. App.-Austin 2011, pet. denied))).
Dr. Tischler testified that "[t]he chronic aquatic life standard is applied as a 7-day exposure period. Because the permit describes the discharges from [certain outfalls] as intermittent, but establishes no allowable duration of discharge, the mine can discharge seven days or more which may result in chronic aquatic life effects in the perennial sections of Elm Creek" and that "without such a limitation, the discharges could effectively be nearly continuous."
The Downstream Landowners also argue that TCEQ's determination is arbitrary and capricious because relying on the SOP Manual "directly contradicts both the TCEQ Fact Sheet and the TCEQ Permit Review for Unclassified Waters." On February 4, 2014, TCEQ staff member Paull prepared a TCEQ Permit Review for Unclassified Waters in which he checked boxes under the "Recommended Receiving Water Uses and Associated Criteria" that indicated that chronic criteria apply for certain outfalls. (Emphasis added.) On August 25, 2014, TCEQ staff member Denney prepared a TCEQ Fact Sheet, which stated that "chronic freshwater criteria do not apply to discharges to intermittent streams where there is no perennial waterbody within three miles downstream from the point of discharge." But, contrary to the Downstream Landowners' assertion, this statement does not speak to whether chronic freshwater criteria would or would not apply to intermittent mining discharges. Moreover, Denney testified that this was a "small oversight" of applying "standard language for majors [i.e., a major permit]," but that "there hasn't been mining-specific language developed" for TCEQ fact sheets applying the mining specific policy outlined in the SOP Manual because "usually the majors all go to EPA for review." Rather, "this would be something that would be caught by a critical conditions reviewer," and "at that point that hasn't been caught." The Downstream Landowners fail to explain how it is arbitrary and capricious for TCEQ to later apply its policy as enunciated in the SOP Manual to not adopt recommended criteria from staff members' earlier review. We therefore overrule the Downstream Landowners' third issue on cross appeal.
The Discharge Route Issue
In their final issue, the Downstream Landowners argue that TCEQ has improperly issued a wastewater discharge permit that includes a specific outfall's discharge route that crosses "a sliver of land" that the private individual Prosser Wall leases and that DRCP has not proven it has a reasonable satisfactory good faith legal right to use. The Downstream Landowners cite Wall's hearing testimony for factual support that DRCP does not own the sliver of land and, as legal authority, rely on a saltwater injection permitting case that required the applicant to make "a reasonably satisfactory showing of a good-faith claim of ownership" because otherwise granting the permit would be a "useless thing." See Rosenthal v. Railroad Comm'n, No. 03-09-00015-CV, 2009 WL 2567941, at *7 (Tex. App.-Austin Aug. 20, 2009, pet. denied) (mem. op.). In response, DRCP and TCEQ argue that the testimony of DRCP's witness Dr. Miertschin constitutes substantial evidence supporting TCEQ's finding of fact that "[t]he discharge routes pass through ditches that DRCP has or will build on property to which DRCP has a good-faith claim, in defined watercourses, or both."
When a permitted discharge is to a watercourse, approval of a private landowner is not required because it is in the state's waters. See Tex. Water Code §§ 26.027, .121; Domel v. City of Georgetown, 6 S.W.3d 349, 358-59 (Tex. App.-Austin 1999, pet. denied).
Assuming without deciding that Rosenthal's requirement that an applicant must demonstrate good faith ownership for saltwater injection permits applies to permits approving wastewater discharge routes, substantial evidence supports TCEQ's finding of fact that DRCP has a good faith claim to the property on which DRCP has or will build the discharge route. Although admittedly not a surveyor, Dr. Miertschin testified that he created the map with the proposed discharge route "after [his] site visit," that he "downloaded property lines" as shown on the map from the "[a]ppraisal district," and that the discharge path depicted on the map does not "go on Mr. Wall's property." In response to cross examination, Dr. Miertschin testified that "in [his] discussions with the DRCP people, they think that they own that sliver" of land at issue.
The Downstream Landowners argue that because Dr. Miertschin is not a surveyor, did not pull title on the listed map properties, and did not know with certainty who owns the "sliver of land" at issue, his testimony "is entirely unreliable" and that Wall's testimony is "far more credible." But the Downstream Landowners fail to cite any authority establishing that this type of testimony is unreliable as evidence of a "good-faith claim of ownership."
In contrast, Wall testified that he is "[e]xtremely familiar" and "know[s] every nook on this property" as the lessee of the property and that "this new route still appears to cross my property at two locations." But Rosenthal states that "[i]f the applicant makes a reasonably satisfactory showing of a good-faith claim of ownership in the property, the mere fact that another in good faith disputes his title is not alone sufficient to defeat his right to the permit; neither is it ground for suspending the permit." 2009 WL 2567941, at *7 (quoting Magnolia Petroleum Co. v. Railroad Comm'n, 170 S.W.2d 189, 191 (Tex. 1943)). The ALJs weighed the evidence and concluded that "the evidence is sufficient to show that DRCP has a good-faith claim to the property," notwithstanding any conflicting evidence from Wall, and TCEQ agreed. The ALJs and TCEQ, "acting as the factfinders, determine the credibility of witnesses and the weight of their testimony," and "[w]e may not substitute our judgment for that of the agency on the weight of the evidence on questions committed to agency discretion" or "set aside an agency decision merely because testimony was conflicting or disputed." Heritage on San Gabriel Homeowners Ass'n v. Texas Comm'n on Env't Quality, 393 S.W.3d 417, 436 n.11 (Tex. App.- Austin 2012, pet. denied) (citations omitted). We therefore will not reweigh the evidence here.
In addition to their substantial evidence challenge on this issue, the Downstream Landowners also argue that TCEQ exceeded its statutory authority in "issu[ing] a permit with a discharge route that crosses private property without an existing watercourse." See Tex. Gov't Code § 2001.174(2)(B). But in their briefing, the Downstream Landowners fail to discuss any statutory authority that allegedly is exceeded. Moreover, the permit states: "The issuance of this permit does not grant to the permittee the right to use private or public property for conveyance of wastewater along the discharge route described in this permit. . . . It is the responsibility of the permittee to acquire property rights as may be necessary to use the discharge route." Thus, TCEQ did not authorize the use of any discharge route unless the permittee first acquires the property rights.
Accordingly, we overrule the Downstream Landowners' final appellate issue.
CONCLUSION
Consistent with the Texas Supreme Court's opinion and for the reasons described above on remand, we reverse the portion of the district court's judgment that reversed the TCEQ order in part, we affirm the district court's judgment in all other respects, and we render judgment affirming the TCEQ order in whole. See Tex. Gov't Code § 2001.174(1).
Affirmed in Part; Reversed and Rendered in Part on Remand.