Weatherford Democrat

January 29, 2013

Judge reverses TCEQ permit


Weatherford Democrat

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By JUDY SHERIDAN

jsheridan@weatherforddemocrat.com

 

Saying the cities of Aledo and Willow Park were not afforded due process at a preliminary hearing, an Austin district court judge ruled Thursday that a permit issued to Republic Waste Services of Texas to build a municipal solid waste transfer station near Aledo schools be vacated and the case remanded back to the Texas Commission on Environmental Quality.

TCEQ granted the permit in December 2011, following an October 2011 ruling by Administrative Law Judge Richard Wilfong stating that the Brazos Transfer Station had met state licensing requirements.

“TCEQ must start over,” Betsy Elam, an attorney with Taylor, Olson, Adkins, Sralla & Elam, representing the City of Aledo, explained. “The administrative law judge wouldn’t allow Willow Park or Aledo party status, and no one was sworn in. The hearing was conducted in such a slap-dash way that the cities were denied proper due process, so it was unconstitutional for them to be denied party status.”

At a preliminary hearing in March 2010, Aledo Mayor Kit Marshall, on behalf of the city, requested party status for the contested case hearing to oppose Republic’s permit application, but Wilfong denied it.

Former Willow Park Mayor Ken Hawkins was also denied party status.

The ruling kept the cities from participating in the official hearing.

Wilfong did grant party status to Aledo Independent School District, Walsh Ranch and residents located near the proposed waste transfer station.

“I liken it to David and Goliath,” Marshall said. “When David wins, it’s an amazing thing. It’s a miracle, actually. This is a huge win, and it’s wonderful for our community.”

“It’s a good thing for the city,” Willow Park Mayor Richard Neverdousky said later. “That’s the reason we pursued it. There’s a lot of impact on roads, entrances and exits and it’s particularly bad for the school district.

“Obviously a lot of mistakes were made by the administrative judge who handled it at first.

“But I expect there will be a reapplication, and we’ll go through this again.”

 The hearing regarding The City of Aledo and The City of Willow Park versus TCEQ and Republic Waste Services of Texas was conducted Jan. 22 in the 345th Judicial District Court of Travis County with Judge Stephen Yelenosky presiding.

In a letter announcing his ruling, the judge said the administrative law judge “failed to do things most fundamental to conducting a ‘hearing’” by refusing to consider the admission of documentary evidence, failing to administer the oath and not applying the law equally.

“All this describes a proceeding that was not just deficient but unrecognizable as a contested case,” Yelenosky wrote. “The entire proceeding fell below the constitutional minimum for due process.”

Yelenosky also stated that the administrative law judge abused his discretion by denying the mayors of Aledo and Willow Park provisional party status or a continuance to establish authority.

The order issued by the judge states that an evidentiary hearing must be held before the State Office of Administrative Hearings if Republic wants to pursue its permit application.

At the hearing, according to the order, plaintiffs will be entitled to present evidence relevant to determining their status as affected persons entitled to participate in any contested hearing on the permit’s application.

The controversial waste transfer station, slated to be built near Nu Energy Road and I-20, behind Duncan Disposal, is opposed by Walsh Ranch developers, the Aledo school district and hundreds of residents, as well as city officials.

Malcolm Louden, of Walsh Ranch, said the appeal of the contested case hearing is the last step for developers.

“The judge’s decision gave voice to the concerns of the citizens of Aledo and Willow Park which were disregarded until now,” he said. “He did a great job of seeing through the smoke and mirrors we were fighting.”

Counsel for Republic Waste Services could not be contacted before press time.