We Win One in Court On TXI
Haz Waste Permit Appeal
Texas Supreme Court Throws Out Technical Challenge
by TXI and Attorney General - Says That Citizens Can Pursue Appeal on the
MeritsWell, it only took three
years, but Downwinders At Risk and the Sierra Club finally beat back the
most ridiculous legal objection ever filed against citizens groups seeking
to overturn a TNRCC permit. The victory means that we will now be able to
challenge the awarding of TXI’s hazardous waste permit - the largest in
Texas - on the merits of the case itself, instead of any further
haggling over imaginary technicalities.
At issue was the supposed failure of our
attorney, Stuart Henry of Austin, to notify TXI of our decision to appeal
the hazardous waste permit issued in 1999. Since the original permit hearing
was a TNRCC affair, and since it’s the TNRCC’s decision that we are
attempting to overturn, Stuart believed he was following the law and custom
in notifying only the Commission of our intent to sue.
But TXI objected that not all “parties” of
the hearing had been notified in the same way as the TNRCC about the appeal.
It took both Downwinders and Sierra Club to court to block any further
movement toward an appeal. Texas Attorney General John Cornyn went out of
his way to take up TXI’s silly cause.
It was the first time that any company had
raised the argument in Texas, and was clearly a desperate legal tactic to
wear us out financially and chronologically before we could get to the meat
of the appeal. It didn’t work.
On Thursday, February 21 in a short, but
sweet decision delivered by Justice Hankinson, the Texas Supreme Court
returned a verdict in favor of Downwinders and the Sierra Club.
“In this case, we decide whether the Solid
Waste Disposal Act and the Administrative Procedure Act, require a party
appealing a Texas Natural Resource Conservation Commission (TNRCC) order
under the Solid Waste Disposal Act to serve citation on each party of record
to the administrative proceeding. The (original) trial court concluded that
because respondents, Sierra Club and Downwinders at Risk, did not serve
citation on each party of record, they failed to meet the statutory
prerequisites to suit. The trial court therefore dismissed the appeal for
want of subject-matter jurisdiction....We hold that the Solid Waste Disposal
Act requires service of citation on the TNRCC, but that neither the Solid
Waste Disposal Act nor the APA requires serving citation on each party of
record. Because the respondents complied with the applicable statutory
service requirements, we affirm the court of appeals' judgment.”
The decision forces the on-going permit
battle back to district court where it will finally be heard on its
merits-meaning that TNRCC’s judgement about everything from the pollution
controls required by TXI to the actual burning of hazardous waste at the
Midlothian plant will be up for grabs.
As most Downwinders will recall, the battle
began over six years ago when Texas Industries (TXI) applied for a federal
permit to burn more than 549,000,000 pounds of hazardous waste each year.
Downwinders at Risk, the Dallas Sierra Club,
and seven citizens participated in a formal contested case hearing process
that lasted from 1997 to 1999. When the TNRCC sided on behalf of industry,
discounting expert testimony as well as that of citizens breathing TXI
pollution, it set the stage for the current appeals fight.
Meanwhile, TXI remains the largest hazardous
waste incinerator in Texas, and one of the largest in the U.S. It is also
the single largest air polluter in north Texas.
As we went to press, we were still waiting
to hear in which court the appeal would finally be heard. Stay tuned. |
