ALJ's Proposal For Decision - CLEAN HARBORS/ALTAIR DISPOSAL SVCS

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State Office of Administrative Hearings :JaqlllnN
Kristofer Morison
Chief Administrative Law Judge 955;
May 7,2019 pzoldn
Mary Smith, General Counsel

Texas Commission on Environmental Quality
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12100 Park 35 Circle, Bldg. F, Room 4225

Austin Texas 78753
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Re: SOAH Docket No. 58248-1960; I‘CEQ Docket N

. 2013-0013—IHW; In the
Mutter of the Application of Altair Disposal Services, LLCfm‘ New Hazardous

Waste Permit No. 5 0407
Dear Madam:
The above—referenced matter will be considered by the Texas Commission on Environmental

Quality on a date and time to be determined by me Chief Clerk‘s Office in Room 2018 of
Building E, 121 18 N. Interstate 35, Austin, Texas.
Enclosed are copies of the Proposal for Decision and Order that have been recommended to the
Commission for approvalv Any party may file exceptions or briefs by filing the documents with
the ChiefClerk of the Texas Commission on Environmental Quality no later than May 27, 2019.
Any replies to exceptions or briefs must be filed in the same manner no later than June 6‘ 2019.
This matter has been designated TCEQ Docket No. 2018~0013-IHW; SOAH Docket No. 582-
18—1960, All documents to be filed must clearly reference these assigned thicket numbers All
exceptions, briefs and replies along with certification of service to the abeve parties shall be filed
PD. Box 13025 Austin, Texas 78711-3025 300 W. 15"" Street Austin, Texas 78701
Fm
|
Phone: 512-475-4993 1
512-475—4994
www.50ahitexas.gov
SOAH Docket No. 582-18496!)
TCEQ Docket No. 2018-0013411“!
Praposal for Dccisinn Covcr Letter
May 7, 2019
with the Chief Clerk of the TCEQ electronically at l_1_i1*p_g.f\ym\rl «aging gn)}j,’cpi}',’ul"lling! or
by filing an original and saver; copies with the Chief Clerk of the TCEQ. Failure to provide
copies may be grounds for withholding consideration of the pleadings‘
Sincerely,
,- v5 l
A
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121%.
P J
Mama Farhadi
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Pratibha Jl ‘ihcnoy
Administrative Law J ‘1n Administratlve Law Judge
Enclosures
cc; Mailing List
STATE OFFICE OF ADMINISTRATIVE HEARINGS
AUSTIN OFFICE
300 West 15111 Street Suite 504
Austin. Texas 78701
Phone: (512) 4754993
Fax: (512) 322-2061
SERVICE LIST
AGENCY: Environmental Quality, Texas Commission on ('I'CEQ)

STYLE/CASE: ALTAIR DISPOSAL SERVICES LLC
SOAH DOCKET NUMBER: 582-18—1960
REFERRING AGENCY CASE: 2018-0013-IIIW
STATE OFFICE OF ADMINISTRATIVE AIIMINIS'I'RA'I‘I
HEARINGS ALJ MEITRA FARHADI

REPRESENTATIVE I ADDRESS PARTIES
ERICALLMON
ATTORNEY
FREDERICK, PERALES, ALLMON & ROCKWELL, PC.
1206 SAN ANTONIO STREET
AUSTIN, TX 73701
(512) 46976000 (PH)
482-9346 (FAX)
(S 12)
eallmon@1f-lawfirm,com
DARMER INVESTMENTS, LP.
VIC RAMIREZ
ASSOCIATE GENERAL COUNSEL
LCRA
PO. BOX 220
AUSTINI TX 78767—0220
(512) 473-3200 (PI I)
(512) 473-4010 (FAX)
vic,ramire7@]cravorg
LCRA
DEREK II. SEAL

WINS'I A!) PC
401 CONGRESS AVENUE, SUITE 2100
AUSTIN, TX 78701
(512) 370-2307 (PH)
(512) 370—2850 (FAX)
dxcal@winstead.com
ALTAIR DISPOSAL SERVICES, LLC,
Page I on
DIANE GOSS
STAFF ATTORNEY
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
MC~175 PL), BOX 13087. MC‘17SI’.O.EOX I3087
AUSTIN, TX 78711—3037
(512) 239-5731 (PII)
(512) 23941606 (FAX)
dims.guss@tceq texas‘gov
MICHEI LF. R. MORRIS

ROGERS, MORRIS & GROVER, L,I4.P.
5718 WESTIIEIMER ROAD, SLITE I200
HOUSTON, TX 77057
(713) 960-6000 (P11)
(FAX)
(713) 96043025
mmmris@rmg11p,cnm
RICE CONSOLIDATED SCHOOL DISTRICT
PRANJAI, M. MEI ITA

ASSISTANT PUBLIC INTEREST COUNSEL
COMMISSION ON ENVIRONMENTAL QUALITY
'I'ISXAS
OFFICE OF PUBLIC IN I'IEREST COUNSEL
MC 103 PO. BOX 13087
AUSTIN, TX 78711—3087
(512) 2390574 (PH)
(5 I2) 239-6377 (FAX)
pranjal.mehm@tccq.tcxas,gov
OFFICE OF PUB] IC INTEREST COUNSEL
KELLY D» BROWN
ATTORNEY AT LAW
CRAIN CATON JAMES (IL
17TH FL(X)R, I‘IVE HOUSTON CENTER 1401 MCKINNEY

STREET
HOUSTON, X 77010
‘I
(713) 752-8628 (PI-I)

(713) 425-7928 (FAX)
kbrown@craincaton.com
ALLIANCE 110R CLEAN ENVIRONMENT
COLORADO COUNTY
COLORADO COUNTY GROUNDWATER

CONSERVATIOIN DISTRICT
Page 2 of]
ROBBIN CLIPSON
UNITED METHODIST WOMEN OF EAGLE LAKE,
GARWOOD & LISSIE, TEXAS
120 LAUGBILIN ROAD
EAGLE LAKE, TX 77434
(512) 923-4345 (PH)
robbinclipson@yahoo.com
UNITED ME’I'HODIST WOMEN OF EAGLE LAKEl
GARWOOD & LISSIE, TEXAS
Page 3 m
SOAI-I DOCKET NO. 58248-1960
TCEQ DOCKET NO. 2018‘0013-IHW
IN THE MATTER OF THE § BEFORE THE STATE OFFICE

APPLICATI 03' OF ALTAIR §
DISPOSAL SERVICES, LLC FOR § OF
~
NEW HAZARDOUS WASTE PERMIT
~
§
NO. 50407 § ADMINISTRATIVE HEARINGS
TABLE OF CONT
~~
I. INTRODUCTION
II. JURISDICTION, NOTICE, AND PROCEDURAL HISTORY ..................... 3
BACKGROUND FACTS
~
III, ................... 4
A. CHARACTERIZATION AS A NONCOMMEIK L HAZARDOUS WASTE
~
...... .
IIIIIIIIIII 8
:1. Waste for :1 Charge

h. Owner Exception...
~i.
"
"Person" ..... e.
~
Generator/Source of the VI aslem
~
iixv “Facility” .........
2. The El)
~
a. Waste for a Charge
b. Owner Exception...
i. “Person”.........‘...................
ii. Genera‘or/Source of the W2

iii. “Facility”....
3. Darmor ................. ......................
2. Waste for :1 Charge

be Owner
“Person”.........................
~
1'.
ii. Generator/Sou rce of the VV e..
iii. “Facility” ............................

SOAH DOCKET No.582-18-1960 TABLE OF CONTENTS PAGE 2
'I‘CEQ DOCKET NO. ZOIS-OUIS—IHW
~
4. Aligned Protestanls ................................... .. ........... ................................ 21
a. Waste for a Charge

b. Owner Exception.......... ......
5. LCRA .................................... .................................................. 24
3. Waste for :1 Charge

h. Owner Exception...
6. ()PIC. ....................... 24
3. Waste for a Charge
~
1). Owner Exception...~
7. ALJs’Aualysis...... ..................
~
:1. Waste for a Charge
b Owner Exception.
~
.
i. “Perslln"..... ..
ii. Genemtar/Source of the Waste 28

“Facility
~~
iii. .
PROIIIBITIOV 0N PERMITTING ON NEW HAZARDOUS WASTE

LANDFILL IF THERE IS A PRACTICAL, ECONOMIC, AND SIBLE
ALTERNATIVE THAT IS REASONABLY AVAILABLE
Altair
95".“?
~ ~
smi-
LOCATION STANDARDS, INCLUDIVG GEOLOGIC-

AI’I’LICABLE SITE
RELATED REQUIREMENTS 39
l. Hydraulic Conductivity and Scientific Notation of 10” cm/sec and

10‘s cm/sec ..... .......................
. ..............
a. Altair .
b. The El) .
c. DarmorfLCRA/OPI
d. Aligned Protestants..
SOAH DOCKET NO. 582—123-1060 TABLE OF CONTENTS PAGE 3
TCEQ DOCKET N0.2018-l)013-1HW
~
ALJs’ ....................... .. 4‘)
~
el
i. Interpretation of Scientific Notation in Commission rule

335.204(e) 49
~
......
ii. Interaction of Standards in Commissmn rule

335.204(e)(4)(B) and 335.204(e)(5).. .......
Concept of Geometric Mean 52
a.
b.
Definition and Examples
Parties’
..... . ...................................
~~
i. Altair
Aligned Protestants
~ The ED ............
Darmor/LCRA/OPIC .
c. ALJs‘ Analysis.......,........t...,.......l...
Soil Data and Application of Gcomctn’c Mean ................ . ...................... 62
3. Overview ..
b. Prior Landfill Applications and 0 Letters.

c. Hydrau e Conductivity and Cr
~~
in
~ e Analyses, [990-2015 Data
it 69
ii. 71
iii. The ED ........... .. 72
d. Hydraulic Conductivity and Grain Size Analyses, 2018 Data ...... 74

'L
Aligned Protestants . 75
ii. Altair 79
iii. Darmor.........mi.
iv. LCRA/OPICl ~
v. The ED
~
e, ALJs’ Analysis of Soil Data in Record. ......................
i. Only Historical Dam (Already Deemed Inadequate b the

ED in 1990:) was Used for the 2013 Application 88
ii. Soil Data within the Landfill Does Not Consistently Show
10 Feet of Separation by Sufficiently Impermeable Soil 90
iii. The Guidance in TG-2 Indicates the Landfill Area is Poorly
Suited for Waste Disposal ....... 94
SOAJI DOCKET NO. 582-121-1960 TABLE OF CONTEN'I‘S PAGE 4
TCEQ DOCKET NO. 2018-0013-IIIW
4.
iv.
v. The Geometric Men

Skews the Data
Characterization of Caliehe at Site and

. ~
Conflicts with the Evidentiary Record“...
as Applied by Altair Improperly
~
The ED‘s Finding that Site Location Requirements are Met
....... . .......... 96
..
100
a. Altair . . 100
b. Aligned Protestants 102
c. Dnrmo ~ . 104
d. The El) . 105
e. ALJs’ Anal) 513.... 106
5. Summary ofALJs' Analysis Regarding Site Location Standards ...... 107
D. FINANCIAL ASSURANCE/FINANCIAL INFORMATION REQUIREMENTS
I. Altair .111
2. The El) .112
3. Darmur ~ .114
4. Aligned Protestants. .115
5 LCRA .. .116
6. OP]C.. .116
7. ALJs’ Analysi .. 116
E. WASTE ANALYSIS PLAN AND WASTE CHARACTERIZATION............. 117

1. ............ ...................... .. 118
121
~
2. ..................
~
3. Need Characterize Incoming Waste 0n
to e Due to Variable
Nature of Generator Sources .
b. EPA Regulations Require Off-Site Factlmes to “EVE Testing

Capabilities ............. ............... 123
3. Aligned Protestants. 123

4. 0P1C.... 24
~
S. The ED 24
~
6. ALJs’ Analysis. ........ . 25
F. DESIGN .......... . .. 126
~
1. HDPE
a. Darn!or......................
SOAIi DOCKET NO, 582-133-1960 TABLE OF CONTENTS PAGE 5
TCEQ DOCKET NO. 2018-0013»IliW
b. Altair .
e. The ED 129
d. Ol‘lC... . 130
e. ALJs‘ Anniys . 130
~
2. GCL Cover ....... . . . . 130
a. Dormer...“ 130
b. Altair. . 131
c. The ED
d. ALJs’ Analys
STORMWATER AND LEACILATE lSSUES.... 132
~~~~
.....................
Overview 132
~ armor
I. ...........
2. Aligned Protestants ....... ....... ........... 134
2:. Severe Rainfall Events. 2015-2017................. . 134

h. Operational Demands of New 24/100 Storm ..
Altair
The ED
H9??? LCRA ..
OPIC.
ALJS’ Analysi
TRAFFIC AND TRANSPORTATION REQUIREMENTS 147
I. Altair ...................................... ..... 149
a. Transportation Exposure Analysis (Commission rule 30‘ 5000(8))

........ 149 ~
in. Transportation Risks in Asse. ng Land Use Compatibility
(Commission rule 335.180) and Transportation Routes
(Commission rule 305.50(a)(10)(D))‘.... ............ ............ 150
c. Burden on Public Roadways (Commission rule 305.50(u)(12)) and

Emergency Response Capabilities (Commission rule 335.182) .. 152
~
2. The ED
3. Darinor
~
Transportation Exposure Analysis (Commi
‘
a.
in. Transportation R ~ ~~ ks in Assessing Land Use Compatibility

(Commission rule 335.180)....
c. Burden on Public Roadways
SUM-lDOCKET No.582-18-1960 TABLE OF CONTENTS PAGE 6
TCEQ DOCKET NO. 2018-0013-1HW
Aligned Protestants 156
~
41 .
5. LCRA . 158
6. OPIC. 158
7. ALJs‘ Analy. s .159
a. Transportation Exposure Anal)

‘
Commission rule 30." 5000(8))
1). Transportation Risks in Assessing Land Use Compatibility
~
(Commission rule 335.180) ..... 16] .
9. Transportation Routes (Com ~ sston rule 30 50(a)(10)(D) 162 .
d. Burden on Public Roadways (Commission rule 305.50(a)(12)) and

Emergency Response Capabilities (Commission rule 335.182) .. 162
1. LAND USE REQUIREMENTS 162
upwowyr
J. AIR 168
1. Altair
2. The ED
3. Darmor
4. Aligned PrOtcatnnts.
5. LCRA ..
6. OPIC....
7. ALJs’ Ana )5] .
V. TRANSCRIPT COSTS ...................................................... 171
V1. CONCLUSION .................................................... 172

SOAH DOCKET NO. 582-18-1960
TCEQ DOCKET NO. 2018-0013—IHW
IN THE MATTER OF THE § BEFORE THE STATE OFFICE

APPLICATION OF ALTAIR §
DISPOSAL SERVICES, LLC FOR § OF
NEW HAZARDOUS WASTE PERMIT §
NO. 50407 § ADMINISTRATIVE HEARINGS
PROPOSAL FOR DECISION
I. INTRODUCTION
Altair Disposal Services, LLC (Altair) applied to the Texas Commission on

Environmental Quality (TCEQ or Commission) for a new hazardous waste permit to authorize
construction and Operation of a noncommercial, hazardous waste landfill disposal facility in
Colorado County, Texas (Altair Facility). The Altair Facility would be located approximately
six miles south of the intersection of interstate Highway (1H) 10 and Texas Highway (Hwy) 71,
and two miles north of Altair, Texas (Site). The TCEQ directly referred Altajr‘s application
(Application) to the State Office of Administrative Hearings (SOAH), without a deadline. for a
contested case hearing and the issuance of a proposal for decision (PFD) As the party moving
for approval of the Application, the burden of proof is on Altair by a preponderance of the
evidence,1
The Executive Director (ED) of tho TCEQ supports issuance of the pen-nit, with several
parties opposed. Specifically, the following parties participated in thc hearing and are opposed
to the Application: the Office of Public Interest Counsel (OPIC); the Lower Colorado River
Authority (LCRA); Darmor Investments, L,Pi (Darmor); Colorado County (County); the
Colorado County Groundwater Conservation District (District); Alliance for a Clean
Environment (ACE); and Rice Consolidated independent School District (RCISD).
'
30 text Admin. Code § 80.l7(a)_
SOAIIDOCKET NO. 582-18-1960 PROPOSAL FOR DECISION PAGE 2
TCEQ DOCKET NO. 201 B—tJOlS-IHW
As set out in more detail in this PF 1), Altair’s Application does not comply with a
number of requirements in the Commission’s rules, and the Administrative Law Judges (ALJs)
recommend that the Application be denied. Specifically, the Application contains the following
deficiencies:
- The Application does not meet an exception to classification as a commercial

hazardous waste management facility as set forth in Texas Health and Safety
Code § 361.003(4) and 30 Texas Administrative Code § 335,1(29).
a The Application has not demonstrated that there is no economic, and

practical,
feasible alternative that is reasonably available to manage the types and classes of
hazardous waste which might be disposed of at the Altair Facility, as required by
30 Texas Administrative Code § 335.205(a)(2).
- The Application has not shown that the geology of the landfill contains soils that
are sufficiently protective of surface water, groundwater, and the underlying
aquifer, as required by 30 Texas Administrative Code §§ 335,203 and
335i204(e)(4) and (St
I The Application does not adequately characterize the waste expected to be

disposed at the Landfill as required by 30 Texas Administrative
Code § 305,50(a)(9), and the facility will not have onsite waste analysis capability
to meet EPA regulations and industry standards for commercial hazardous waste
landfill facilities
0 The Application does not adequately describe the major routes of travel to be used
of hazardous waste to and from the
for the transportation facility as required by 30
Texas Administrative (lode § 305.50(a)(10)(D),
o The Application does not provide adequate information on the potential for the
public to be exposed to hazardous wastes through releases associated with
transportation to or from the unit as required by 30 Texas Administrative Code
§ 305,50(a)(8)i
‘ The Application docs not demonstrate that the risks associated with the
transportation of hazardous waste to the facility are compatible with local land use
as required by 30 Texas Administrative Code § 335.180(1)(C).
SOAH DOCKET NO 582-18-1960 PROPOSAL FOR DECESION PAGE 3
TCEQ DOCKET NO. ZOIS-OUIJ-IHW
II. JURISDICTION, NOTICE, AND PROCEDURAL HISTORY
No one contested the Commission’s jurisdiction to act on the Application or SOAIi’s

jurisdiction to convene a hearing and prepare a PEI) In addition, no one contested the adequacy
of notice regarding the Application or the hearing. Therefore, the Allis will address these issues
only in the findings of [not and conclusions of law in the Proposed Order attached to this PFD.
Altair filed the Application on October 22, 2013, which the El) declared administratively
complete on November 20, 20132 On November 25 and December 6, 2013= the Chief Clerk of
the TCEQ mailed the Notice of Receipt of Application and intent to Obtain an industrial
Hazardous Waste Permit (NORI) to adjacent landowners, public officials, other persons entitled
to receive notice under TCEQ rules or who requested notice, and to individuals who participated
in an October 21, 2013 pre-application meeting. On December 19, 2013, the NORI was
published in The Banner Press Newspaper.
After Altair responded to one administrative notice of deficiency (NOD) and two
technical NODS, the ED proposed an initial draft permit to Altair on January 20, 2016, to which
Altair responded on February 16, 2016. The ED completed technical review of the Application
and issued a Notice of Application and Preliminary Decision (NAPD) and a Final Draft Permit
on .1une29,2016.3 'J'hc TCEQ received public comments on the Application; held a public
meeting on the Application on December 1, 2016, in Columbus: Texas;4 and the ED issued a
response to public comments on November 14, 2017.5 On January 9, 2018, pursuant to 30 Texas
Administrative Code § 55.210, Altair requested 21 direct referral of the Application to SOAll for
a contested case hearing on whether the Application complies with all applicable statutory and
regulatory rcquircn‘tcnts,6
’
Altair Preliminary Hearing Ex, 1-2
’
Altair Preliminary Hearing Ex, L6,
"
ED Ex. 1 utSS
5
ED Ext 1 l,
‘
ED Ext 1 at 58.
SOAH DOCKET NO. 582484960 PROPOSAL FOR DECISION PAGE 4
TCEQ DOCKET NO. 20l8—0013-IHW
On March 28, 2018, AL] Meitra Farhadi held a preliminary hearing at the Colorado
County Courthouse in Columbus, Texas7 The Lil), OPIC, LCRA7 and Dermot were admitted as
parties The County, the District, ACE, and RCISD were also admitted as parties and aligned
(collectively, Aligned Protestants). The United Methodist Women’s Organization was admitted
as a party but did not participate in the contested case hearing. 'l‘om Etheridge also sought to he
admitted as a party at the preliminary hearing, but his request was denied by the Aid.’2
The parties conducted discovery in 2018 and, as a result, Aligned Protestants sought
leave to enter the Site to conduct surface and. subsurface inspection of the soils at the Site to
develop evidence concerning whether the location for the proposed landfill is compliant with
applicable TCEQ location standards, Specifically, Aligned Protestants sought to: observe the
existing borrow pit on the east side of the proposod landfill footprint to visually inspect the
exposure of soils; perform assessment borings at up to 20 locations across the footprint; drill 6.8
borings utilizing a larger diameter hollow-stem auger drilled approximately 18-25 feet below
grade; and analyze and test the samples. ALJs Farhadi and Pratihha J. Shenoy allowed the
Aligned Protestants to conduct discovery on the Site, which they did along with Altair, during
October and November 2018.9
On December 6-18, 2018, the ALJs convened the evidentiary hearing at SOAH in
Austin, Texas. The parties filed closing arguments on February 8, 2019, responses to those
closing arguments on March 8, 2019, and the evidentiary record closed on that date
111. BACKGROUND FACTS
On October 22,2013, Altair filed the Application seeking authorization for a new
noncommercial hazardous waste permit to authorize the disposal of hazardous wastes by
~SOAH OrderNo. 1; ED Ex. lat 5%.

x
SOAH Order No. l,
9
Aligned Protosmnts’ Supp, Ex. I
SOAH DOCKET NO. Sal-1841960 PROPOSAL FOR DECISION PAGE 5
TCEQ DOCKET NO. 20l8-0013-IHW
landfillingilo The Altair Facility would receive, and dispose by landfilling, hazardous and
uonhazardous incinerator and thermal desorption ash/residue generated off-site from commercial
hazardous waste treatment, storage, and disposal (TSD) facilities loaded in Texas, and owned
and operated by Clean Harbors, Inc (Clean Harbors)” Prior to arrival, acceptanca, and disposal
at the facility, all incoming wastes would be required to he treated and certified by the generator
that they meet the applicable federal restrictions for land disposal.‘2
The Altair Facility would be located at 5464 Hwy 71, Lot B, on approximately 275 acres
roughly two miles north ol~ Altair, Texas, and six miles south of the intersection of 1H 10 and
Hwy 71 in Colorado County, Texas.” The property on which the Altair Facility would be
located is part of a 472-acre parcel which includes an active municipal solid waste (MSW)
landfill on the soudiern 197 acres currently owned and operated by Altair.M The Altair Facility
would include the landfill of approximately 66 acres (Landfill), two leachate storage tanks, and
two stormwater ponds surrounding the Landfill.ls The Landfill would consist of 12 landfill cells,
each divided into subcells constructed above the grade of the ground and surrounded by a dike
system, with an approximate disposal capacity of 2,352,015 cubic yards.” A final cover system
would be placed over each individual cell as the cells reach capacity.” The two leachate storage
tanks would have a capacity of 120,000 gallons each and are proposed as less-than 90-day waste
management units for storage of on-sitc generated hazardous waste”. Altair proposes to
transport all hazardous leachate and contaminated stormwater generated on-site to an authorized
off-site hazardous waste management t'aeilityr
m
Altair Ex. 1-4 at 000157.
Altair lixs. 1 at 10-1 I; 1-4 at 000157.
Altair Ex. 2-2, Att, F. at001114; ED 13x. 9 ar19.
Altair Exs, l at 10—11; 1-4 at 000157, 00024243,

Altair Ex. 1 at 11,
Altair Ex. 2-2, Atl, .l at Table 1-1 and Drawing 1-3,
Altair Exs, 1 at 0000“; 1-2 at 000060.

Altair lix. 1 $000031,
Tr, at 324; ED Ex, ll nt4,
ED EX, 1 | at 4.
SOAH DOCKET NO. 58248-1960 PROPOSAL FOR DECISION PAGE 6
TCEQ DOCKET NO. 2018—0013-IHW
IV. ISSUES
A. CHARACTERIZATION AS A NONCOMMERCIAL HAZARDOUS WASTE

LANDFILL
Altair and the ED are of the opinion that the Application by Altair is to build a
noncommercial hazardous waste management facility; while OPIC, LCRA, Darmor, and Aligned
Protestants contend the Application proposes a commercial hazardous waste management

facility In comparison to a noncommercial facility, a commercial facility is subject to
heightened requirements. of particular relevance in this case, those requirements include a
determination of the burden of the facility on the public roadways by vehicles traveling to and
from the facility and a demonstration that emergency response capabilities are available to
manage a reasonable worst-case emergency condition associated with operation of the facilityi2D
Because Altair has not sought to demonstrate that it meets the requirements applicable to
a commercial facility, ()PlC, LCRA, Darmor, and Aligned Protestants assert that the Application
should be denied, However, since Altair did not apply for a permit to authorize a commercial
facility, the ED did not review the Application under those requirements. Therefore, if it is
determined that the Altair Facility was misclassified as a noncommercial facility, the ED
requests that the Application be remanded to the ED to allow Altair to amend the Application to
request authorization of a commercial facility,“
“Commercial hazardous waste management facility” is defined by the Texas Health and
Safety Code and Commission mle as:
[1\]ny hazardous waste management the 'ty that accepts hazardous waste for . . ,
a charge, except a captured facility or a facility that accepts waste only from other
facilities owned or effectively controlled by the same person (Owner
Exception)”
2”
30Tex. Admin. Code §§ 305.50(a)(12XA), (CXI); 335.182, ,183.
2‘
ED initial Brief at 8‘
’2
Tex. Health & Safety Code § 36] 003(4): 30 Tex. Admin. Code § 335.109).
SHAH DOCKET NO. 58248-1960 PROPOSAL FOR DECISION PAGE 7
TCEQ DOCKET No. 2018700134HW
“Hazardous waste. management facility” is defined as:
[A11] contiguous land. including structures. appurtenances and othor
~ ~
improvements on the land, used for processing. storing. or disposing of hazardous
waste, The term includes a publicly or privately owned hazardous waste
manauemt‘nt facility consisting of processing. storage. or disposal operational
l‘l ous management units such as one or more landfills. time ~
impoundmcnts; waste piles, incinerators, boilers, and industrial furnaces.
including ocmcnt kilns. injection wells; salt dome waste containment caverns.
land treatment faculties, or a combination of units?"
Th: term “facility” in the Commission rules is defined as including:
[Alli contiguous land. and structures othc ~ ~ purtcnaucos, and improvements on

the land, used for storing, processing, or disposing of municipal hazardous waste
or industrial solid waste, or for the management of hazardous sccondary materials
prior to reclamation. A facility may consist of several treatment, storage, or
disposal operational units tog, one or more landfills, surface impoundincins: or
combinations ol‘tlicmlll“
"Cztptui‘co‘ facility“ means:
[A] manut’acturing or production facility that generates an industrial solid waste

or hazardous waste that is routinely slomd, processed, or disposed of on a shared
basis in an integrated waste management unit owned. opcmuzd by. anti loczttcd
within a contiguous manufacturing complex.25
It is undisputed that the Application by Altair is to bui.d a hazardous waste management

facility, which will ztcccpt hazardous Witsto, and will not be a capturod facility.26 'l‘hcret‘orc the
whethcr the Altair Facility properly characterized as noncommercial turns on whether

0m
issue ol‘ is
the Facility will accept waste for a chnrgo. and wlicthcr the Exception is met.
~
" Tex. Health 3L Safety Codi: § 36100313), 30 Tex. Admin, Codc§ 335 l(7§)
3‘
30 Tex. Admin. Code § 335.t(6l)(AJ,
TM.
~ & Fall‘ly Code § 36LOOSM), 50 Admin. Code
25
Health 'l’cx.
§ 335.!(14).
15
Altair Ext . l0; 1-4 51000l6l;Tr.tit161.l65,383,
SOAH DOCKET No.582—18-1960 PROPOSAL FOR DECISION PAGE 8
TCEQ DOCKET NO. ZUlS—lmlS-IHW
I. Altair
Clean Harbors is a publicly traded company that was founded in 1980 and operates
throughout the United States, Canada, Mexico, and Puerto Rico.27 'l‘hrough its various affiliates
and subsidiaries, Clean Harbors provides hazardous waste management services, emergency spill
response services, industrial cleaning and maintenance services, and recycling and disposal
services.28 Altair is a wholly owned subsidiary of Clean Harbors Disposal Services, Inc. (Clean
Harbors Disposal), which is a wholly owned subsidiary of Clean Harbors.” Clean Harbors
Environmental Services, Inc. (Clean Harbors Env, Services) is also a subsidiary of Clean
Harbors and assisted in preparing the Application.30 Clean Harbors Deer Park, l,.l.,C. and
DuraTherm, Inc. are also both wholly owned subsidiaries of Clean Harbors.“
The Application requests authorization to construct and operate a noncommercial. captive

hazardous waste landfill.32 Altair asserts that the Altair Facility is properly characterized as
noncommercial for two reasons: (1) because Altair will not receive waste for a charge; and
(2) because it will only be authorized to accept waste from certain corporately-related entities2 it
therefore falls under the Owner Exception.33
According to the Application and Final Draft Permit, the only wastes that Altair would
accept at the Landfill would be: (1) incineration ash/residue hazardous wastes from Clean
llarbors Deer Park, L.L.C. in Dccr Park. Texas (Deer Park Facility), (2) Thermal Desorption
Unit (TDU) process non-hawrdous industrial waste from DuraThcrm, Inc. in San Leon, Texas
(Dura'l'herm Facility), and (3) non-hazardous treatment residue from Clean Harbors—owned and
2’
Altair Ex. 1 at 6.
“3
Altair Ex. 1 at 6.
2”
Altair Exs, l at 7; 7 at 5'6.
3“
Altair Exs. l at 7; 7 316‘
3‘
Tr. al 538,
3’
Altair Exs. 2 at: 20; 2-2 at 001081.
33
Altair Initial Brief at 940,
SOAEIDOCKET NO. 582484960 PROPOSAL FOR DECISION PAGE 9
TCEQ DOCKET NO 2018-0013411“?
operated mobile TDU treatment units that manage oil and gas exploration and production waste
in Texas.34 David B. Nielsen, Envirunmcntal Compliance Director for Clean Harbors Env.
Services, testified that thevwastes generated at the Deer Park Facility are currently being disposed
of at a hazardous waste landfill orsite which is expected to reach capacity in the next 5—7 years;
the TDU wastes generated at the Dura'l‘hemi Facility are being disposed of at third-party non-
hazardous landfills; and Clean Harbors does not currently have any mobile TDUs in Texas”
The Deer Park Facility is permitted by the ‘l'CEQ as a commercial hazardous waste
management facility and consists of a hazardous waste incinerator, a landfill, and storage
facilities.16 The landfill at the Deer Park Facility is currently the only hazarduus waste landfill in
Texas operated by any Clean Harbors entity.37 Mr. Nielsen explained that commercial industrial
generators are the sources of the waste being incinerated at the Deer Park Facility.38 Currently,
after incineration, the waste residue is disposed of at the landfill in the Deer Park Facility.” lie
stated that these original generators pay a fee to Clean Harbors for those waste management
services, and that similarly, the original generators that send their waste to the DuraTherm
Facility for waste management also pay a fee for those services/‘0
A waste code is a code defined by the Environmental Protection Agency (EPA) to
describe a particular waste. Each type of hazardous waste has a particular code associated with
it. When a listed hazardous waste is treated, the residual from the treatment process maintains
the same waste code through to its final disposition. Therefore, the same waste codes will carry
M Altair x5. 1 at l 141; 14 at OOOlSS‘, 2-2, All. i at001461;7 at 7; TV. at 612,
‘5
AltairEx. l ut12;Tr 3125.
35 TL al24'25.
37
Tr, atSO,
7‘
Tr. at 32.
39
TI. at 33,
"0
Tr. at 33-34.
SOAH DOCKET N0 58248-1960 PROPOSAL FOR DECISIOB‘ PAGE It)
'I‘CEQ DOCKET NO. 2018~0013~IHW
through from the original generator, through the incineration or thermal treatment facility, [0 the
final disposal site at the Altair Facility.“
:1. Waste for 3 Cha rgr
Altair relies on the tcstimony ot‘ l’hillipG.Rctallick, Senior Vice President of

Compliance and Regulatory Affairs for Clean llarbom ~ V, Services, as evidence that Altair will
not receive waste for a charge at the Altair Facility. Mr. Relttlliclt has a Bachelor of Science
(BS) in geological and environmental acience‘" His job duties include responsibility for
stat ~
compliance programs
When
Facility receives wastes
at Clean Harbors
asked to characterize the transaction that
from
TSD
Clean Harbors
l'acillhest pennitting, and working with executive
is
Mr. Retaliick
cxpcctcd to occur when the Altair
a entity, tc ~ ~ iilcgl that there will he an
“intel’~£0nlpflt\y accounting debit/credit."44 [is further cxplaittcd that it is his understanding that
under gcncraily acccptcd accounting principles (GA/U”). cost accounting will occur where it
debit ledger adjustment would be made; and that Clean Harbnrs has credit/debit ledger system
that handles intcrcornpatny transfers between C lean Harbors cntitics.

‘5
Mr Vtclsen also testified that “Clean Harbors dues not intcnté to send invoices to Clean
Harbors or the entitieg generating thc w ~‘tcs and no payments would be made to Altair for
management of the waste)“ Because no commercial invoicing will be inmlwtl. Allttll‘
contends that it will not be acccpting hazardous waste for at charge,”7 However‘ even if Altair
“
“‘
Tr, at
E\. 7-
i;
H
4448‘
Mr. R'talltck
~ l'r
Tr. £11956
: ~ is not a certified public accountant (CPA ), nor does he regularly ~
pl’i .icc accounting. Altnir
Altair Ex. '7

31 5.,
'l't't
at 96168,
‘5
Dartrmr FA. 2F ut-m: l‘r. nt 96$“.
SOAH DOCKET NO. 582-18—1960 PROPOSAL FOR DECISION PAGE 1!
TCEQ DOCKET NO. 20l8-0013-1HW
did receive hazardous waste for a charge, Altair asserts that it will still not be a commercial
hazardous waste facility because it meets the Owner Exception."
ht Owner Exception
Mr, Nielsen testified that in his opinion, the Altair Facility will be noncommercial
because it will only accept wastes from other entities that are owned or etTeetively controlled by
the same entity that controls Altair%lem Harbors."9 The waste streams that will be disposed
of at the Altair Facility (the ash/residue waste produced by the incineration or the TDU process),
will be waste residue generated by Clean Harbors entities, and the Clean Harbors entities will be
the only generators listed on the hazardous waste manifests for the waste received at the Altair
Facility?“
i. “Person”
Altair contends that the term “person” in the Commission rule does not limit the Altair
Facility to receiving waste only from itself, but instead allows the Altair Facility to meet the
Owner Exception if it only receives waste from subsidiaries of Clean l-latrbors.51 Mr. Nielsen
explained that the Application was filed under Altair instead of Clean Harbors because Altair
owns the Site.52 He agreed that under the Resource Conservation and Recovery Act’s (RCRA)
owner/operator requirements, had Clean Harbors wanted to operate the Altair Facility instead of
Altair, both Clean Harbors (as operator) and Altair (as owner) could have applied for the
permit.53
‘3
Altair Reply Briefat l0.
‘9
Altair Ex. 1 at24.
5°
Altair Iix, l nl24~25,
5‘
Altair Initial Briefat l].
52 Ti'l
at 2930.
5’
Tr. at 30.
TCEQ DOCKET NO. ZOIS-OOIJ-IHW
ii. Generator/Source of the Waste
Commission rules define “generator” as:
Any person, by site, who produces municipal hazardous waste or industrial solid
waste; any person who possesses municipal hazardous waste or industrial solid
waste to be shipped to any other person; or any person whose act first causes the
solid waste to become subject to regulation under this chapter,
‘54 . .
Altair contends that the Clean Harbors’ entities’ treatment of the hazardous wastes is the
act that makes the newly created waste (residue) first subject to regulation.55 Mr. Nielsen
explained that his review of EPA guidance docutnents made it clear to him that the activity of
treating hazardous wastes causes the treatment facility to become the generator of the residue
wastes.56 The EPA guidance documents Mr, Nielsen relies on are: (1) an August 30, 1991 letter
from the Director of the EPA Office of Solid Waste, stating that “residues from the treatment of
hazardous waste could cause a [treatment, storage or disposal facility] to be classified as a

generaterf’57 (2) an undated question and answer responding that “hazardous wastes generated
during the recycling operation are new wastes, and the recyclcr is viewed as the generator[;]“’ in
response to an inquiry regarding What liability a generator of hazardous Waste has for residues
produced from the recycling of his waste;5R and (3) a January 16, 1986 letter from the Chiet'ol'
the Waste Identification Branch, discussing the identification of residues generated from the
treatment of hazardous wastes, and stating that “the TSD [facility] becomes a generator of the
treated waste."59 The Deer Park Facility and the DuraTherm Facility have both previously
submitted reports to the TCEQ stating that they are the generators of their process residues,50
5"
30 Text Admin, Cot ~ § 335.1(67).
‘5
Altair initial Brtefat l5.
5"
Altair Ex. 1 5:125 (referencing Altair Ex. 1—8)
I
Altair Ex. 1-8 at 000365,
53
Altair EX, 1-8 at 000366.
5"
Altair Ex. 1-8 at 000367-68.
“7
Altair Exsv l 312648; Mia; l»9b, 1‘9e,
50AM DOCKET NO. 5824 84960 PROPOSAL FOR 01‘ ~ ISION PAGE 13
~
~
'
EQ DOCKET NO. 2018-001 3~1HW
While agreeing that it is possible for 21 waste tn have more than one generator
(ewgcttemturs). Altair asserts that the commercial customers in this case, are not co‘generators
of the \xaste residue that the Altair Facility would ac ~‘ptt Altair argues that waste treated by the
Clean Harbors" entities will become an entirely different waste.“
~‘aciliry"
'
Altair contends that the commercial nature of Altair’s MSW landfill on property
contiguous to, the pmpesed Altair Facility docs not render the Altair Facility commercial hccause
the two landfills would each be different facility.62 Scott Graves is a Prol'essimtal Engineer
(1’. ~ F l who works for Geosyntec Consultants, Inc ((ieosyrttec). He was the permit engineerhf-
and he also served as the project manager on the ritppliezttion.”1

~
recur d for the Application,

~
Mr. Graves testified that the MSW landfill and the proposed Altair Facility would he tlillerent
facilities because they each have their own legal descriptinn containing their own facility
boundary, they each have their own EPA identification number, and they each have their own
unique TC EQ regulated entity number.“4
2. The ED
21. Waste for a Charge
The ED did not evaluate whether operation of the Altair racility W0 ~ amount to
accepting waste for a charge, Instead, the ED determined tltztt the proposed eporetiuns of the
Altair Facility would satisfy the Owner Exception, and therefore, the ED explains, a
“ Altair Reply Btwi‘m R.
“1
Altair Intttal Bt’iefat 14
0‘
Altair Ex, 2 <’ll 6.
““
Tr: at 188283
DOCKET N04 2018-0013»l
'I‘CEQ
determination that Altair will accept waste for a charge does not mean the Altair Facility is
commercial.‘55
b. Owner Exception
The ED agrees with Altair that the activities proposed to be authorized in the Final Draft
Permit would satisfy the Owner Exception because Clean Harbors wholly owns Altair, and the
Final Draft Permit would limit the receipt of waste to “wastes from and generated by off-site
facilities that are owned or effectively controlled by Clean Harbors?!“ The ED explained that
commercial hazardous waste facilities owned (or effectively controlled by) Clean Harbors accept
waste on a commercial basis, they thermally treat the waste, stabilize the treatment residue to
meet the hazardous waste land disposal restrictions, and then dispose of Lhe waste by
landlillingi67
i. “Person”
Srinath Venkat is a PE. and a Project Manager in the Industrial and Hazardous Waste
Permits Section of the Commission’s Waste Permits Division, He has worked at the TCEQ and
its predecessor agency for approximately 25 years, and he was the engineer project manager
assigned to perform the technical review of the ApplicationsR Mr. Verticat has spent his entire
25-year career at the 'I‘CEQ in the industrial and hazardous waste permit section.” in that time,
he has worked on four landfill permit applications prior to this one—one original permit
application, two renewal applications, and one permit modificalien/expansion.70 'l‘he Altair
Facility is the first noncommercial hazardous waste landfill application that Mn Venkat has
‘55
ED Initial Briefat 6.
3
ED Initial Brief at 5, citing to Altair Ex. 22 at 001097. ED Exs. 9 at 19; i] at 49
57
ED Initial Briefat 6;Trvat 1524.
5'
ED Ex, «:3.
1
‘9
Tr. at 1307.
7° 1307.11,
Tr. at
SOAH DOCKET ND 58248—1960 PROPOSAL FOR DECISION PAGE IS
TCEQ DOCKET No.2018-0013-lllw
worked on.‘7 ‘
MLVenkttt testified that Altair filed the Application as a noncomtnctuial
ha/ttrtlmts waste facility. 1sscrting that it met the Owner Exception because the parent
corporation Clean Harbors would be the “person” that owned or ct‘t‘cctively controlled both
the landfill facility (Altair Facility) and the waste generating; facilities (Deer Park Facility.
Duta'l’hmn Facility. and mobile THUS)” ML Venkat stated that although the term “patson” is
not defined in the rule, he accepted Altair’s interpretation that it means the parent corporation”
In response to concerns raised by Aligned Protestants and Durmot that the Final Draft
Permit would allow for a transt‘t‘r of ownership 01‘ the Altair Facility with no limitation that the
future owner he a Clean llarbors’ entity, tho El) states that the language in the permit docs not
grant approval in advance for any such transfer of ownership. The permit could only be
transferred lit accordance with Commission rules?4 'l‘hmtzt‘ore, the ED asserts that :f this permit
is granted and Altair seeks any changes to its operation. authorized wastes, or ownership that
would make the facility a commercial hazardous waste facility, oithct a modification or major
amendment of the permit or a new pcmiit to authorize commcrcial operations would be

V15
rotltti l‘etl
ii, Generator/Source of the Waste
Distinguishing between the wastes mm the original third-party generators, and the waste
l"
residue generatud by the treatment processes the lil) considers the waste residue from the
treatment processes to he newly—generated wastes by l‘acilitics owned or effectively controlled by

Clean Harbors. Because the Final Draft Permit only authorizes the disposal of iltclnilt‘ttlol‘
ash/residue generated by Clcttn Harbors cutitio ~and because the original third-putty generators
t
are not the generators of the residue. the Final Draft l’omiit will only allow for the disposal of
,
Tr. at l3l2.
Tr. at 1400.
Tr. at 1400.
30 'I'ex. Admin, ~‘Odc §§ 305,64; 335.125.

ED Reply Exist at 3-4.
SOAH DOCKET NO. SSE-184960 PROPOSAL FOR DECISION PAGE m
TCEQ DOCKET NO. 20] KOOISIIHW
hazardous wastes gcncratcd by Clean Harbors” entities.“ The El) explains that the Altair
"77
Facility will thcrct‘orc be a “captixe facilit)~ Althnugh the Commission rules do not provide
an exception to classification as commercial for a “captive facility.“ the ED asserts than the term
“captixc facility“ describes the condition oi'mueting the Owner l;xceptinn.73
In additinn, Mr Vertkat testified that ho drafted a special provision into the Final Draft
Permit (section IlliF.) which clarifies that the Final Draft Permit would only authorize operations
of the Altair Facility as a captive facility That provision specifies that the hamrdmw and
nonhaxardoub industrial wastes identified tW authorized for acccptancc at tho Altair Facility
under permit rcctinn l\".B. must be generated by Clean Harbors entities and at off~sitc facilitiev
owned and operated by Clcan Harbors entities.“

2
Thereforc. according to MLVenkat, the
Application and Final Draft Permit would authorize t “noncommercial hazardous Waste facility
because the proposed operational scenario appears to meet the rule requircmcnts for
noncomn ereirtl operations?“
Mt: Venkat explained that the Altair Facility is not classified as commercial when thc
Clean Harbors entities that receive the hazardous waste for treatment and disposal and then send
the mute residue to the Altair Facility For disposal are commercial, because ofRCRA’s concepts
ot‘captit'c facility and generator?‘ Thermal treatmentlincincratinn of hazardous waste generates
a new waste. The owner/operator of the thennai treatment trrtit/incincmtor is the generator of the
wastc that results from the treatment of the wastes. Therefore. in this case, because the
owners/operator.» ol'thc thermal Ueatment facilities arc the generator: of the waste to be sent to
the Altair Facility, and those generators are owned or effectively controlled by Clcan Harbors,
7? 3O Tex. Admin Code § 335.103) (defining “captive facility" as "lai facility that accepts wastcs from only
related (within the same corporation) ot’tlytito generators,“),
ED Initial Biiefztt 5.
5’
ED Eu. l7~l$1 ~
V"
1 (it .l‘).
M ED Ex, at l‘),l
7“
[3U Ex, 1 a2 20.
50AM DOCKET NO. 58248-1960 PROPOSAL FOR DFClSlON PAGE 17
TCEQ DOCKET NO. 20l8-0013-IHW
the Altair Facility would he a captive facility and incct the :xccption to classification as a
commercial hazardous waste management facility.xz
iii. “Facility”
The til) ElnUW’iCdgCS that the Application and Final Draft Permit would authorize
construction and operation of a new facility lncaied on Lhc came parcel of real property as the
existing Altair MSW landfill facility.“3 The PD also recognizes that the MSW landfill acccpts
waste [in a charge on a commercial basis, and that it statute and Commission rttlcs dctinc the
term “factli ~ to include all contiguous land used for storing, processing or disposing of
municipal hazardous waste or industrial solid waste?" l‘lewcvcr, the ED distingui. ~~as between
the Altair MSW landfill facility and the prcposed hazardous waste landfill bcczntsc the facilities
will have "distinct haundnrie ~.” in doing so. tit: EU states that ha is intcmrcting the term facility
to allow the designation of a separate facility boundary that cncntnpnsscs just thc hazardous
qtC management units and activities, even if that boundary does not encompass the iltll “200%
of the parcel of rcal piopcrty on which it is inseam” As support fur this interpretation. the ED
cites to the preamble to the Commission ntlc dc‘iining facility, wherein the 'l‘CEQ’s predecessor
agency clarified that "the purpose ufthc rcgultttion is to rcgttlate humrdous and industrial solid
waste. The term ‘fncility‘ should run be taken to include pmpcrty which is not fairly to he
considered part ol‘thc hazardous waste manngcnicnt liicility,““
~ ~ ~
‘2
Ef)Px,la12l.
5“
ED initial Bikini 7, Altair 2-2 all ~~ EX. ll M13,
initial l cf at 18', ~ clth &
.
Admin. Code 335.](6 l) (dctining

Safcty Code 8
“fact tty
~
GLOOSUS)
~ V
{defining “hazardous waste management
5“
ED initial Briefm i4
"'5
ED initial Brit‘fat 8 (citing 16 Tex. Reg 6065 (Octobet'ZS, 19%)).
SOAH DOCKET N0.582-18-1960 PROPOSAL FOR DECISION PAGE 18
TCEQ DOCKET N0.2018n0|113-1HW
3. Banner
Darmor takes the position that the Altair Facility should be eharacterimd as a commercial
facility because doing so will further the goals and purposes underlying the distinction between
commercial and noncommercial facilities. The landfill at the Deer Park Facility is a commercial
hazardous waste management facility, and as expressed in the Application, “the Altair Facility
landfill can essentially be viewed of as an extension of the Deer Park l’acility's landfill?“
Therefore, Dar-mm tu'ges, as essentially an extension of the commercial Deer Park Facility
landfill, it makes sense to also treat the Altair Facility as a commercial landfill.“
:1. Waste far a Charge
Because the term “charge” is not defined in the TCEQ rules, Darmor looks to the
dictionary definition, which is “a debit to an account.“89 Dannor argues that the intcrcompany
debit/credit associated with the acceptance of hazardous waste at the Altair Facility, and
described by Altair’s witnesses, meets this definition.
Darmor’s witness. Jorge G. Zornbergt a Professor in Civil. Architectural and
Environmental Engineering at the University of Texas at Austin, holds a Doctor of Philosophy
(PhD) in Civil Engineering from the University of California at Berkeley, with an emphasis in
Geotechnical Engineering. Dr Zomberg also has a BS. and Master of Science (MS) in Civil
Engineering.90 He is a registered PE. in California, and prior to his academic work,
Dri aberg worked for an engineering consulting firm as a project engineer, There, he worked
mostly on permitting, design, and evaluation of waste containment facilities,91 More

specifically, most of his engineering work focused on hazardous waste containment facilities
“7
Damlcr Ex. 9 at6;A1tair Ex. 2-2 at 1459.
9“
Dannorlnitial Briefat lO-ll.
“9
https://www.1ncrriam-wehslcr.com/dictionary/chztrge.
9”
Dr. Zomberg is not a CPA. 'l‘r. at l286, Darmor Ex. 2 at 5
9‘
Dammr Ex 2 at 7.
SOAH DOCKET NO‘ 582484960 PROPOSAL FOR DECISION PAGE 19
TCEQ DOCKET NO. 2018-0013-IHW
under RCRA and under the Comprehensive Environmental Response Compensation and
Liability Act (CERCLA).92
Dr. Zomberg testified that Altair will accept hazardous waste for a charge. He explained
that although the financial transactions will be tracked through cost accounting between the
various Clean Harbors" subsidiaries, a “charge” will be assessed to the related subsidiary for the
acceptance and disposal of waste lie stated that this “charge” will ultimately be passed on to the
outside customers of Clean Harbors as part of their charges for incineration and disposal
services93 Dr. Zombcrg testified that his opinion was validated by a (IRA.94 Dr‘ Zomberg
explained that Clean Harbors’ subsidiaries charge their customers not only for incineration, but
also for disposal services. Currently those disposal services are occurring at the Deer Park
Facility; however, that waste is planned to be disposed of at Altair once the landfill at the Deer
Park Facility reaches capacity,” Therefore, Damtor contends the initial charge assessed to the
customers includes the cost associated with disposal of the hazardous waste at the Altair
Facility.96
11. Owner Exception
i. “Person”
Damior contends that the Altair Facility does not meet the Owner Exception for a variety
of reasons, Looking at the plain language of the Owner Exception—a facility that accepts waste
only from other facilities owned or effectively controlled by the same personADarmor asserts
that the relevant “person” is Altairinot Clean Harbors ’l‘herefot'e, because Altair does not own
92
Banner FX, 2 at 7.
9’
Dannor Ex, 2 at 14,23.
“ 'l'r, at 1286
9’
Darmor Ext 2 at 23.
9°
Dannor Initial Briefat 6~7
SOAH DOCKET ND. 58248-1960 PROPOSAL FOR DECISION PAGE 20
or effectively control the Deer Park Facility or the Dura'l'herm Facility, the waste will not be
from entities owned or controlled by the same person?7
Darn-or also points to the Final Draft Permit for support that the term “person” should
refer to Altairi Specifically, the Final Draft Permit allows for ownership of the Altair Facility to
be transferred to another entity that is not under the ownership or control of Clean Harbors,
Therefore, Dan-nor argues, if Clean Harbors is determined to be the “person” for purposes of the
Altair Facility meeting the Owner Exception, then the allowance for the transfer of ownership of
the Altair l-‘acility is inconsistent with that determination.”
Even if the term “person” is determined to mean Clean Harbors, Dannor states that the
hazardous waste to be sent to the Altair Facility originates from entities not owned by Clean
Harbors. Because the sources of the waste being incinerated at the Deer Park Facility are
commercial generators, and not under the ownership or Control of either Altair or Clean Harbors,
Darmor asserts that the waste to be sent to the Altair Facility would be from entities not owned
or effectively controlled by the same person”
iii. “Facility”
Looking at the definition of “facility” in the Commission rules, Darmor contends that the
Altair Facility should be considered a commercial facility in light of its common location and
operation with the existing MSW facility at the Site.

100
As support, Darmor points to the
testimony of Mr. Nielsen that the Altair Facility is on the same legal property as the MSW
landfill; the MSW landfill is situated contiguous to the Altair Facility; the MSW landfill receives
97
{Manor initial Brief at 7-8,
” Dannor initial Bricfat 9; Altair Ex. 1-4 at000177; Tr. at 169-70
"9
See Tr. at 32, 106; Dannor lnitial Eriefat 9.
‘0“
Banner Initial Briefat 9,
SOAH DOCKET NO. 582-]8-1960 PROPOSAL FOR DECISION PAGE 21
TCEQ DOCKET NO, 2018-0013-IHW
industrial solid MSW landfill receives waste fmrn commercial customers

waste on occasion; the
not captive to Clean Ilarbors; and the MSW landfill a commercial facility.Em In sum,is
Mr. Nielsen agreed that the Commission’s definition of“faei1ity" would comprisc both the MSW
landfill and the Altair Facility.m2 Likewise, Mr. Nielsen agreed that if the Altair Facility is not a
captive facility, then the premise for the Application being submitted as a noncommercial
hazardous waste management facility is wrong. ’03
Similarly, Dr, Zomberg, testified that it is important to identify all the wastes to be
received at the facility to determine if the facility will truly be a “captive lacility.”]°‘ if the
facility was considered to be all of the units on the property, he opined, it would not be a captive
facility because the Altair Facility has existing MSW landfill units on the same property which
“’5
accept waste from generators not related to Clean Harbors,
4. Aligned Protestants
a. Waste for 2 Charge
Based on the intercompany cost accounting process Mri Retallick testified to—where
Altair will receive credits for its disposal services to be offset as debits to the intereompany
accounts of the Clean Harbors” facilities sending waste to Altair— Aligned Protestants contend
Altair will be accepting waste for a “charge.”'°‘ In so doing, Aligned Protestants also look to the
Merriam—Webster dictionary definition of the term “charge,” which includes “debit to an
account.”107
‘9‘
Tr. (1:84-86.
m Tr, at 86, lines 1&22.
“’3
Tr. at 87-88.
‘04
TI. at 1240-41.
‘“5
Triat124l‘
M Aligned Protestants Initial Brief at 56, ll,
3‘” https://www.mcrriam»webstcrtcom’dictionary/chargc).
Aligned Protestants initial Brief at It (citing
SOAP}
’i‘CRQ ~
DOCK ~ N().582~18—19btl
lt’
DOCK Not 20l8-00l3~lHW

PROPOSAL FOR DECISION PAGE 22
Aligned Protestants further argue that G. “charge” does not require a cash payment or an
invoice. However. they point out that own il‘ it

did= in this cane tire Clean Harltortz‘ subsidimiog
will be billing the initial industrial waste generating customers to manage the waste from cradle
to grave—thus the hazardous Waste to bo ncecptcd by Altair will have already been accepted for
a “charge” by the Clean linrbors‘ subsidiaries sending it to Altair for disposal,”8
b. Owner Exception
Aligned Protestants contend that the Altair Facility will not meet the Owner Exception
hl'C'dUSUI ( l) the term “person‘ in the Owner Exception refers to the same/Zlcility that will be
managing the wasteiin this case Altair, and tho wastes to be managed at the Altair Facility will
not originate from Altair; and (2)1'212 Altair Facility will not he a "captive facility“ because ;t will
motive waste generated by entities other than Clean Harbors’ entities.
Aligned Protestants point to the fact that the Altair Facility will be on the some property
as a currently operating commercial MSW landfill. liven it' the property can he divided
administratively based along permit boundaries, the MSW landfill and the Altair Facrlity will hc
on contiguous land; therefore. Aligned Protestants contend thcy will be a single “facility” based
on Commission rules. Accordingly. because the MSW landfill on the property rmeives some
industrial solid waste from unrelated third partiest the entirc facility cannot bu considered
“captive?”
Assuming the MSW landfill were excluded completely from the analysis of the Altair
~
Facility. Aligned Protestants state that the Altair Facility still would not meet the Owner
Exception because the: incoming w 8 would not come sololy from Clean Harbors~ affiliatesi
Looking in the term “generator” as defined in Commission rules, it includes “any person whose
act/[mt
~ ~
musm‘ the solid waste to become subject to regulation under this oliaplcriflm tinder this
~
'5“
Aligned Plot Innis initial Briciat 12.
'4“
Aligned Protestanm initial Bricl‘ai $9. 30 Tux. Admin Code § 355.103). (61).
“9 30 Ten Admin, Code .7) (emphasis added)
§
SOAH DOCKET NO. 582-18-1960 PROPOSAL FOR DECISION PAGE 23
TCEQ DOCKET NIL 2018-0013-IHW
definition, the “generator” of the wastes sent to the Altair Facility includcs the original customers
who initially produced the waste, rendering it first subject to regulation. Acknowledging that the
act of shipping the ash and other thermal residuals causes the Clean Harbors’ entities to also be
generators, Aligned Protestants explain that the Clean Harbors’ entities become co-generators of
the waste.‘11 As support, Aligned Protestants point to the preamble to 40 Code of Federal
Regulations (C.FiR.) §260.10 (RCRA definitions), wherein the EPA provides examples ol~
situations where there may be multiple generators of the same wastefl” and the preamble for
certain RCRA hazardous waste regulations (40 CilR. §§ 262.10, 264.71, and 265.71), stating
that in the context of hazardous waste treatment facilities, residuals could he considered newly
generated waste, requiring the treatment facility “like other generators” to comply with the
applicable RCRA provisions.‘ 13
Aligned Protestants contend that the movement of the Deer Park Facility commercial
hazardous waste landfill 100 miles from its current location does not transform what is already
regulated as a commercial activity into a noncommercial one.“" Stressing that the
noncommercial classification was not independently determined by the ED, Aligned Protestants
prepare a noncommercial
~
point to the testimony of Mr. Graves that Geosyntee was hired to
application as determined by Clean Harbors" management.“ Additionally, they point to the
increased costs associated with complying with the extra requirements for commercial facilities
as an incentive for Altair to advocate for designation as a noncommercial fa
"‘ Brief at
Aligned Protestants Initial 9.
“1 45 Fed. Reg. 72026-27 (October 30, 1980),
"3
45 Fed. Reg. 86969 (December 31, 1980).
'” D'drmor Ex. 9 at 6; Ti: at 430-31.
"5 Tr. at 251256.
"6 Aligned Protestants Initial Brief at 13-14.

SOAH DOCKET N04 582-18-19t PROPOSAL FOR DECISION PAGE 24
5. LCRA
2L Waste for :1 Charge
LCRA contends that the intorcompany Lrattsaction; or debit ludgcr adjustment between
Altair and the Clean Harlmrs‘ facility sending the waste for landfill disposalb should be
considcrcd a “chart;~V
“11?. ~
h. Owner Exception
LCRA argues that thc Altair Facility docs not meet the Owner Exception because the
taint “person” in the definition should be construed to moan Altair, not Clean Harbors
'l‘het‘cfore, by receiving waste from cntitias that are not owned or effectively controlled hy Altair
{the Deer Park Facility and the DuraThcrtn Facility), the Altair Facility will not. meet this
ER
uxccption to being classified as a commercial hazardous waste rnmiagcmcnt facility,
'
6. OI’IC
it. Waste for a Charge
Ol‘lL" takes the position that the credits alliwrdcd to Altair by Clean l-{ttrhors (or one ol‘its
subsidiaries) to offset the 09bit: that Altair would incur for operational expenses would boat a
~
its
direct relationship to the amount of waste titanuged (ii the Altair l’acil y. Therefore, those
credits would be consideration paid to Altair to manage waste for Clean Harltm's’ subsidiaries”?
Ol’lC further points out that Clcan llttrbot‘s’ subsidiaries charge the waste gcnsratozs for
~LCRA ciy ~
Briet‘at ~ ,
“5 LCRA Initial Bricfat 374,

“9 ()l’lC ltiitiaf Briefat 5—6,
treatment and disposal of the wastktherefere, the money needed to operate the Altair Facility
can ultimately be traced back to the customers of the Clean Harbors: subsidiaries.‘ZU
1). Owner Exception
OPIC contends that the Altair Facility will not meet the Owner Exception because the
Altair Facility will receive waste generated by entities other than Clean Harbors‘ entities OPIC
agrees that the preamble for certain RCRA hazardous waste regulations (40 CFR. §§ 262.10,
26471, and 265.71) demonstrates the EPA’s intent to impose generator status on treatment
facilities; however, OPIC stresses that there is nothing in the language that removes
responsibility of the original generator,

‘11
Explaining that the intent of RCRA is to ensure
“cradle~to—grave” responsibility for waste from its original generation to its final disposal, OPIC
asserts that the original commercial customers of Clean Harbors are the “cradle” and the Altair
Facility will be the “grave?”22
In sum, the Altair Facility will be receiving wastes originally generated by third-party
generators, that Ciean IIarbors‘ entities also become generators by way of their treatment
processes, Therefore, OPIC states, the Altair Facility will inherently be accepting waste from
non-related generators and will not be a captive facility.‘23
7. ALJs‘ Analysis
“Commercial hazardous waste management facility” is defined by the Texas Health and
Safety Code and Commission rule as:
m Tr, at 997-1003.
m OPIC Initial Briefat4 (Citing 45 Fed Reg, 86968 (December 31, 1980)).
m OPiC Initial Briet'at 4-5,
‘23
OPIC Initial Briefat 5r
TCEQ DOCKET NO. 2018-00l3—IHW
[A]ny hazardous waste management facility that accepts hazardous waste for . . .
a charge, except a captured facility or a facility that accepts waste only from other
facilities mmcd or effectively controlled by the same person (Owner
Exception).124
In order to be considered a commercial hazardous waste management facility, the facility
must accept waste for a charge125 If the facility does not accept waste for a charge the inquiry
ends there. if the facility does accept waste for a charge, then it must be ascertained if an
exception to being considered a commercial facility applies. As discussed below, the ALJS find
that the Altair Facility will accept waste for a charge and will not meet either exception to being
considered a commercial facility.
2. Waste for 5: Charge
Neither the Texas Health and Safety Code nor the Commission mles define “charge.”
Therefore, the term must be construed applying the general rules of statutory construction.
Words and phrases should be given their ordinary or plain meaning; however, words and phrases
that have acquired a technical or particular meaning must be construed accordingly.125 Looking
to the plain meaning of the term “charge” in a financial context, the term is reasonably
interpreted to mean “a debit to an account.M27 Applying this reasonable interpretation of the
term “charge” in the context of defining a commercial hazardous waste management facility,
with the testimony of Altair’s witnesses that there will be an “inter-company accounting
debit/credit,“ the preponderance of the evidence establishes that Altair will be accepting waste
for a “charge.”
‘14
“5
~
Tex. Health
~
& Safety Code § 351.0030»; 30 tax. Admin. Code § 335. «29).
Tex. Health a Safety Cutie § 361,003(4); 30 Tex. Admin. Code § 335.1(29).
l2“
Tex. Gov’tde § 311,011. Garret! v. Borden, 283 S.W,3cl 852, 853 (Tex, 2009); EP Holt?! I’d/Inert, LP 11. City
ofEl Pass, 527 S.W.3d 646, 655 (Tex. App.—E1Faso 2017,:10 pet).
'17
https;/iwww.merriam-webster.ccm/dicticnary/‘charge
TCEQ DOCKET NO 2018-00l3-IHW
In addition, the money needed to operate the Altair Facility as a hazardous waste landfill
can ultimately be traced back to the third-party generator customers of the Clean Ilttrbors‘
entities that will be utilizing the Altair Facility as the ultimate disposal sitcom
b. Owner Exception
Having found that Altair will be accepting waste for a charge, the ALIS must now
determine whether either exception applies that would allow the facility to be removed from the
definition of a commercial hazardous waste management facility Because all parties agree that
the Altair Facility will not be a captured facility, the remaining exception for the ALJs to
consider is the Owner Exccption, The statute and rule provide that a “facility that accepts waste
only from other facilities owned or effectively controlled by the some person” is excluded from
the definition of commercial hazardous waste management Facility.129
As discussed below, the evidence does not support a finding that Altair has met the
Owner Exception to classification as a commercial hazardous waste management facility,
1'. “Person”
“Captive Facility“ is defined in the Conunission rules as “[a] facility that accepts wastes
from only related (within the same corporation) off-site generators.””° The ED and Altair
contend that, although the term “captive facility“ is not used in the Owner Exception, meeting
the definition of a captive facility meets the Owner Exception, The Allls agree that by
definition. being a captive facility meets the requirements of the Owner Exception. However, as
discussed below, the ALIS find that the Altair Facility will not be a captive facilityi
'23
Tr,997-99.
'3”
Texv Health & Safety Code § 361,003(4); 30 Tex. Admin, Code § 335109)
'3“
30 Tex. Admin Code § 335 1(13)
TCEQ DOCKET N0.20|8-0013-IHW
For the Owner Exception to exclude a facility from classification as a commercial

hazardous waste management facility, the facility can only accept waste from other facilities
owned or effectively controlled by the same person.‘31 Aligned Protestants, Dormer, and LCRA
argue that the term "person" in the Owner Exception refers to the facility/person seeking the
permit, While Altair contends, and the ED agrees, that “person” refers to the entity owning (or
effectively eontrolling) both the facility sending the waste and the facility receiving the waste——
in this case, Clean Harbors.
A plain reading of the law implies that the “person” is not necessarily the "facility." The
person refers to the owner of the facilitvhich, in the context of business entities, is the parent
entity. 'l‘hcreforc, the ALJs agree with Altair and the ED, that “person” in the context of the
Owner Exception refers to Clean Harbors as the entity owning (or effectively controlling) both
the facility sending the waste and the facility receiving the waste.
With regard to the argument that the provision in the Final Draft Permit which would
allow a transfer of ownership would he inconsistent with a determination that “person” refers to
Clean Harbors, the ALJs do not agree, As explained by the ED, any requested transfer of
ownership must comply with Commission rules, and depending on the circumstances, may
require a modification or major amendment of the permit or a new permit altogether,
“Generator” is defined as:
Any person. by site,who produces municipal hazardous waste or industrial solid

waste; any person who possesses municipal hazardous waste or industrial solid
waste to be shipped to any other person; or any person whose act first causes the
solid waste to become subject to regulation under this chapter.’32
m Tex. Health & Safety Code § 361.003t4); 30 'l'ex. Admin. Code § 335.1(29).
“3 30 Tex. Admin. Code § 335.1(67).
TCEQ DOCKET NO, 2018»0013-IHW
The pmamblc to portions ot‘RCRA explain that:
Owners and operators of hazardous waste management fac'~'tics may generate

hazardous waste (agu residues created by treatment processes). With respect to
the ltflYaI‘dOLtb’ waste that these persons generate, thcv ‘ike other generators. must
comply with the applicable pro (ms of Part 252 [Standards Applicable to
Generators of Hazardous Waste].
~~
Likewise, 1hr: EPA guidnncc documents cited by Altair indicate that the Clean l-larbors’
treatment facilities will become goitcmtors, but not the only generator.”‘ The Al are
Ltnpcrsttaded by Altair’s argument that the Clean Hurlmrs‘ entities’ treatment of the hazardous
wastes is the act that makes the newly created waste (residue) first subject to regulation.
Looking at the definition of “gotta-atom" inuludus “any person whose act first causes the solid
~
it
waste to bacome subject to regulation under this chapter: 5

The waste is clearly first subject to
mgulatinn when it is first generated by the thirdmarty customers In fact, when discussmg
RCRA‘s “cradle-to»gravc” responsibility, Mr ~ Nielsen testified that the Clean Harlmrs‘ customer
are the “c ~ dlc“~

and that currently the Deer Pnrlr landfill is the “grave,” but if permitted, the
Altair Facility will become the “grave.””“ The Application supports Mia Nielsen’s testimnny by
stating that the Altair Facility is to be an extension of the commercial hazardous waste landfill
~
137
unit on the Dcer Park Facility, Vir. Nielsen also explained that the waste nodes (describing thc
hazardous characteristics of the wasrc) from the original generators will rcmain with the e
‘
238
after treatment by tho Clean Harbor; untities through to disposal at the Altai: l-‘ocil y.~
'l‘hsrefore, while the liinal Draft Permit is drafted to allow a noncommercial captive facility
spccify'ing that thc Clean lim‘bors' entities will he the art/y generators ot‘thc wastcs to he sent to
Lite 1 ~ rnir Facility that will not in fact be the ruse.
‘33
45 red. Reg. $69.69 (Decembcr 31_t9sm.
3‘
Altair Ext 1 at 25 ~ financing Altair Ext 178)
‘3’
30 Text Admm. Code 335.](67).
“5 TV, at lZO-Zl.
’77
Altair Ex, 2-2 at 00145?
"t Tr. at 4445,13.
SOAIIDOCKET NO.582»I8»196D PROPOSAL FOR DECISION PAGE 3|)
TCEQ DOCKET N020]8-0013-IHW
Specifically, the Final Draft Permit states that the Altair Facility will only be permitted to
accept: (i) incinerator ash, slag, or other residue from incineration of wastes; and (ii) other “dry”
thermal residue from treatment by 'l'DU.139 However, as discussed above, the Clean Harbors’
entities will be generators, but not the only generators of the waste stream. Therefore, the
evidence does not establish that the Altair Facility will only accept waste generated by Clean
Ilarbors’ entities and will not meet the requirements of the Owner Exception,
iii. “Facility”
The ALJs agree with the ED, that although the Altair Facility will be on the same
property and contiguous with the MSW landfill, the term “facility” should not be taken to
include property which is not fairly to be considered part of the hevardous waste management
facility. This interpretation is consistent with the direction given by the TCEQ‘S predecessor
agency when promulgating the definition of “facility” in 1991,140 Indeed, the MSW facility has
been in operation for approximately 50 years1 and will remain a separate entity from the
4'
proposed hazardous waste facility“2 Therefore, the waste stream accepted by the MSW facility
does not determine whether the Altair Facility will accept waste from other facilities not owned
or effectively controlled by Clean llarburs.
B. 0N PERMITTING ON NEW HAZARDOUS WASTE LANDFILL

I’ROHIBITION
IF THERE IS A PRACTICAL, ECONOMIC, AND FEASIBLE ALTERNATIVE
THAT IS REASONABLY AVAILABLE
Texas Health and Safety Code §36l.023 sets forth the State of Texas‘s public policy
concerning hazardous waste as follows:
m All ~ 4. . 2-2 at 001461;I3D Ex. 9 at 19.

““ See 16 Tex. Reg. 6065 (OctoberZS, 19M),
“1 'l'r. at 5354.
m Tr. at 976, 979-80.
SOAH DOCKET ND. 58248—1960 PROPOSAL FOR DECISION PAGE 3t
TCEQ DOCKET No.2018-0013—IHW
'l‘n
protect the public health and environment. it is the stateis goal, through source
induction, to eliminate the generation of him dons ~1c to the maximum extent
that is technologically and economically ~
fa . ble. 'l‘hcret‘ore. it is the state‘s
public policy that, in generating, treating, storing, and disposing of hazardous
wastt, the following methods are preferred to the extent economically and
technologically l‘ensihle‘ in thc order listed:
(1) source rcdttctio ~ ,
(2) reuse or recycling ol‘wastc, or both:

(3) treatment to ticstmy hazardous characteri ~~~
s;
(4) treatment to reduce littzartlmts characteristics:
(5) underground injection; and

(6) land (lisptisttl.m
To accomplish the state‘s goal: Texas Health and Sitt'ety Code § 361.100 prohibits the
tierrnitting nt‘a new lunar-dons waste landfill it‘ttn alternative exists. Specifically. it provides:
Thu conunission by rule shall prohibit the name of a permit fur a new ~
hazardous waste landfill or the areal expunsinn of an existing hantlt'dous Waste
landfill il'thcrc is a practical, ccnnomig and feasible alternative to the hind till that
is reasonably available to manage the types and classes of humt‘dous wastc that
might be disposed ofnt the landfill.
Accordingly the Commission has prntttulgated rules prohibiting the issuance of a hazardous
waste landfill permit “if there is a practical, economic. and l'casihlc alternative to [the] landfill
that is reasonably available to manage the types and Classes of hzt7arrlous wasta which might he
disposed ofat the landfill[.]"”"
1. Altair
Altair contends that no formal Written nltenmth as analysis was rcquircd to be conducted
either 85 pant ofthe Application or separate from the Application, As support for this nssertinn,
{\i Hilts tn the lack of I’CuSi for such information in the 'I‘C'EQ’S Part B Application Form;
I“
c,flealth& a; Ct
IA"
3t) 'm Admin ode
t‘
§ 335.?03taX2).
'l'CEQ DOCKET N04 2018-0013-IHW
the lack of a request made for one by the ED; and the lack of specificity in the Commission mile
“5
as to what is required of an applicant to meet this requirement,
Mr, Nielsen testified that the Application was filed because the commercial hazardous
waste landfill at the Deer Park Facility is expected to reach capaelly in the next 5-7 years.”6 He
stated that according to the Commission’s guidance document (El-225; Commercial Management
Fauili/iex fl” Huzardoux Waste and Industrial Solid Waste, within the region that encompasses
the Deer Park Facility (Region 12), there are no facilities authorized to receive the same types of
hazardous wastes currently generated at the Deer Park Facility”7 Although the Altair Facility is
approximately 100 miles away from the Deer Park Facility, Mr. Nielsen said that the next closest
facility that might be able to accept the waste is l30 miles away. Therefore, Mri Nielsen opined
that the facilities that could accept the waste are not economically feasible due to the increased
transportation costs along with disposal fees; and not practically feasible since the waste would
have to be hauled a farther distanced“
When asked, Mr. Nielsen admitted that no cost comparison was performed to take into
account the longlterm cost of designing, permitting, constructing, and operating the Altair
Facility versus sending the waste In one of the other facilities capable of accepting the waste.149
Likewise, Mr, Nielsen acknowledged that no cost comparison was performed to analyze the cost
of purchasing land closer to the Deer Park Facility for permitting a new hazardous waste landfill
versus the transportation costs and risks associated with transporting hazardous waste 100 miles
to the Altair Facility.150
“5 Altair Initial Brier at 20; Altair Exs. 2 at 25; 7 at 7

"‘5
TL a125,
‘4’
Altair EX. 1 at is.
“3 Altair Ex. 13:19.

"9 Tr, at 10].
'50
Tr, at 101‘
TCEQ DOCKET NO. 2018-0013-l
Mr. Retallick expressed that he is very familiar with the Application and has been to the
Site many times.lSl While he acknowledged that Altair did not conduct a formal analysis of
alternatives, he testified that he agrees with the testimony of Mr. Nielsen, that Altair has not
identified any alternatives that are practical, economic, and feasible and reasonably available for
disposal of hazardous waste”2
Mr. Graves testified that he was advised by Altair that the Deer Park Facility landfill is
nearing capacity; and from his previous design work on that landfill, Mr, Graves stated that a
lateral expansion would he very difficult, and a vertical expansion would provide minimal
additional capacity,153 Mr. Graves also assessed the possible alternatives raised by
Dr. Zornberg‘s testimony, and although some were feasible technically, he opined that they
were not practically feasible. 15"
2. The El)
Mr. Venkat testified that he relied on Altair’s representations that the Deer Park Facility
landfill is nearing capacity255 He knows of at least three commercial hazardous waste landfills
that might be able to accept the subject waste for landfilling; however, Mr. Venkat explained that
the ED’s Part B Application Form does not request information from an applicant to demonstrate
that there are no practicall economic, and feasible alternatives that are reasonably available to
manage the waste; and the ED does not look behind an applicant’s decision or judgment in
submitting an application for a new hazardous waste landfill facility,155
‘5'
Altair Ex. 7 at 6.
‘52
Altair Ex. 7 at 7.
‘53
Altair EX. 2 at 22.
15‘
TV. at 1367-69, 192885, 2023~26,
‘55
ED Ex, 1 at 29V
‘55
ED Ex. 1 at 30.
SOAH DOCKET NO. 582-18496!) PROPOSAL FOR DECISION PAGE 34
TCEQ DOCKET NO‘ 2018-0013—IHW
When asked, Mri Venkat made clear that the ED did not evaluate it‘there was a practical,
economic, and feasible alternative that is reasonably available to manage the waste.157 However,
he also testified Lhat he did not believe the alternatives discussed by Darmor and the Aligned
Protestants were enough to demonstrate that there is a practical, economic, and feasible
alternative that is reasonably available.158
In sum, the ED contends that the record evidence does not support a finding that there is a
practical, economic, and feasible alternative that is reasonably available to manage the waste”)
3. Darmor
Darmor highlights that the burden of proof to demonstrate compliance with the
Commission rule prohibiting new hazardous waste landfills if there is a practical, economic, and
feasible alternative that is reasonably available rests squarely with Altair:l

60
Dr,Zomberg
testified that the need for a written report of the analysis undertaken by an applicant for a new
hazardous waste landfill permit is implicit in Commission rule 335205600), otherwise, there
would be no way for the Commission to review whether the evaluation has been conductedm‘
lie explained that even if an item is not explicitly addressed in an application form, the
regulatory requirement remains, and compliance with all regulatory requirements needs to be
documented. 162 He testified that in this case Altair did not prepare any analysis of any
of permitting a new hazardous waste landfill.

[63
alternatives that they considcd in lieu
“7 Tr.at1476.
15“
ED Ex. 211.30.
1
"9 ED Initial Briefaw.

‘6”
Dm‘mor initial Briefat 12; 30 Tex, Admin. Code §§ 801761), 335.205(a)(2)
Tr. at 1193-94.
'6
“2 Tr. at 1261,
‘63
Dannor Ex. 2 at 32.
TCEQ DOCKET NO zors-tmtuuw
[)r. Lombet‘g identified several potential alternatives involving tlilicrcnt methods of
expanding existing thcilities controlled by Clean llarbora‘fi" Dr anherg also (discussed the
possibility of utilizing other commercial landfills, including factors that might weigh in favor of
the cost to do so dcspitc transportation and disposal fccs, such as site development and
operational costs)“ Despitc identifying potential alternatives. Drt Zombcig testified that it: has
not prepared on alternatives analysis and cannot say for sure it there is any practical, economic,
and feasiblo alternative that is reasonably ztvailnhlttfi"
in contending that Altair failed to meat its burden of proof on this issuc, Dormer points to
the testimony by Allan‘s witIIC“cs ~ that no ultcrnatwcs analy ~ had been pcrt‘ormcdr What hart
been done. was Mr, Gravcs's liniitctL cursory investigation taking less than an hour to consider
only one of the alfcrnativcs posed by Dr. ZornbcrgM7 In summary, Darmor asserts tlnit an
unsupported conclusion that there are no viable alternatives is not enough to satisfy the
regulatory requirement of Commission rule 335 V205(n)(2 ).
Aligned Protestants stress that the prohibition on now hazardous waste landfills is
consistent with the policy otthc state that landfills are the lfiasl favored Form of hazardous waste
disposal. As such. they express their grave concern that neither Altair nor the El) scriously
considered whether a new landfill facility is necded.“ Specifically ~\ligncd Prottzstams point to
the tsstirnony of MLNiclsmi, that there was never any study of alternatives done {or the
Application, and that when asked by the iii) it‘ there were. alternatives, Ati‘tit'
~ said than; wurc
~
none.“’9 In addition, Aligned Protestants point to the testimony of Mr. Nielsen and Mr. Graves
““ Darmor Ex. 2 at 3.53.7.

M Dormnt Ex. 2 arm-40V
~
'
Dist—moth] ntSSi
“1195-96, 277-80, 2026; Darmor 26 at in

““ Aligned Protestants Initial Bticl'al lit-15,,
‘5’
Tr. at 9(7797, H9,
$0M! DOCK NO, 582-18»1‘160 ~
TC 50 DOCKET No.2018-0013-1HW
’
that, although there are existing facilities that might be able to accept he waste in lieu Mere-citing
a new l zardous waste landfill. Altair did no cost analysis to compare if it truly would be
economically treasihle to dispose of the waste at one of those theilities instead of creating the
Altair F aeili:y.”° Therefore, while stl ssing that the burden is not on Aligned Protestants to
show that alternatives exist, they argue thdl Altair failed to even demonstrate that the three
identified commercial hazardous waste landfills are not practieal. economic. feasible, and
'71
reasonably available
5. LCRA
LCRA did not offer evidence nor argument on this issue.
6. OPIC
OPIC contends that Altair failed to meet its burden ot‘ proof on this issue. Specifically.
OPIC explains that the Texas Health and Safety Code and Commission mics are elem in their
mandate to consider practical. economic. and feasible alternatives to the pennitting of new
hazardous waste landfill."~ and the lack of an explicit request for the armlysis does not negate the
~
requirement}72 OPIC finds that the oral alternatives analysis described by Altair‘s witnesses do
not meet the reqttiretttents of Commission rule .205(al(2‘t.
With regard to Mr. Graves‘s testimony that conversations about alternatives took plaee,
Ol’lC asserts that even if on oral anal}:~~ occurred,

: it must meet the expectations outlined in the
Commission rule. Anti> in this case. Altair’s alleged oral anal) sis omits many considerations that
[all under the umbrellas nt‘ practical. economic: and feasible alternatives. Specifically. ()PIC
states that the oral analysis emitted consideration of the expansion of an existing facilitys
~nsideration of alternative locations. and detailed comparison of costs and transportation
~
~
V risks.
l ’ ['r at 9199.285786.
‘7‘
Aligned Pro nitial Briefat 16-17.
“2 Brie~ at
OPIC Initial 7.
()l’lti agrees with Dr. Kornberg that, at a minimum, an alternatives analysis should
include a cost evaluation, research on alternative locations, possibility of vettical and lateral
expansion of existing facilities. and whether such alternatives are technically feasible and
pretetieztltm 'l‘urning to each of these considerations OPIC identities that Altair did nut evaluate
vertical expansinn of the Deer Park Facility landfill in conjunction with a hotiznntal expansion
and did not perlimn 3 within: analysis; thereby .t‘zu'ling to demonstrate that expansion ol'the Deer
Park Facility hazardous Waste landfill was not a practicalt economic, and feasible alternative.”4
Likewise, MnGtaves testified that alternative locations for locating the landfill were nm
evulttatedt nor were existing landfills capable of disposing hazardous waste eveluntetltE75
Additionally OPlC points out that a cost comparison between alternatives was not conducted,
nor an evaluation of transportation risks, alternative routes, or an impact etnalysis‘“ ‘l‘heret‘ore.
()l’lt,‘ asserts that Altair failed to adequately consider practical. economic. and feasible
alternatives.
7. ALJS’ Analysis
The 'l‘exas lenlth and Safety Code provides that it is the state’s goal to “eliminate the
generation othnzardous waste to the maximum extent that it is technologically and economically
l‘cnsiblefl” After identifying practical, economic, and feasible alternatives Commission
rule 335.205<nl(2) requires that such alternatives be reasonably available. The burden to
demonstrate compliance with the prohibition on permitting if alternatives exists rests With
Altair.‘76 While the rule language does not specify that the analysis must be a formal written
doeutnent. the rule clearly requitr’s that an assessment of practical economic, and feasible
alternatives before 21 pemtit can be issued. In [his case. Altair did not meet its burden in
m
~
n». at 1252-63, 1275'
m
~
(1:255, 49 l . 493.
m . it! 286, 504.
‘7’
~
T’. at 104, 192-93.
w: lexi llealth Sc Safety

~
Ccttlc § 351 tt>23(a)v

'1’
30 Tex. Admin Code § 80,1701).
SOAH DUCKE
TCEQ DO('|\ ~ ~‘0. 58‘48—1960
Or 2018~0013~IHW
identifying practical, economic. and feasible alternatives; and as a result. did not reach the
reasonably avnilable factor for consid ~ Anon. While Altair has attempted to sltechorn in an
evaluation at the hearing by diserediting potential alternatives put forth by Darmm~ and Aligned
Protestants, the burden rests clearly on Altair to demonstrate that no reasonable alternatives cxisL
Despite Altairk position that it did no alternatives analysis because the El.) did not
request one—the burden remains on Altair as the applicant for the permit. and there is no
ex ‘ption to the stmutory requirement for lack of an explicit request by the

‘ ED”: Likewise= the
ED did not review whether alternatives were reasonably availzzblo because Altair did not provide
him with information to review“0 Despite the statutory mandate to prohibit a new hazardous
wuste landfill if there is a practicalr economic, and t'easihlc alternative that is reasonably
available, Mr, Venkat testified that the lit) does nht look into the decision mntlc h) An applicant
to submit an application for a new hazardous waste landfill.”“
~
lndced, the only evaluation Altair can point to is that of Mr. Graves, which eonxlsted
entirely of evaluating the currently operating landfill at the Deer Park Facility for expansiox
In addition. there is no analysis of the costs associated with transporting and managing the
hazardous Wastes at other facilities already permitted versus transporting and managing, them at
the Altair Facility-'53 While Altair also asserts that Mr. Vielscn testified to potential liability
~
risks inherent in disivnsing of hazardous waste at a landfill Clean Harbors does not cnntrol, there
was no evidence in the record that the alternative hazardous waste landfills capable of accepting
hazardous waste have any operational problems or an enforcement history with the Comm
to support his statement—as such, the ALJs consider it mere speculationm
"m
W
Altair
ED lflX
El) ljx.
.xs
.
It?
at 30v
2‘)
~
~
int 28; 7
~
at 7_
'l ‘3'.
at I476,
“‘2 l‘r. at264~65

'53
ft. tlt loll-0|, 1(14.
'
Alrairxcpzynrierm 13 (cit ~gTr. otll'i-lZ).

SOAI!DOCKET NO, 58248-1960 PROPOSAL FOR DECISION PAGE 39
TCFQ DUCK F'l' NO. 20! 8-001 SJHVV
Both Altair and the lit) contend that because Altair did not identity any practical:
economic, and feasible alternative that is reasonably available. Altair has 3' ~~sticd Commission
rule 335V205ttt)(_2), This asscnian misses the point ol‘thc regulation entirely. When an applicant
fails to perfotrn an alternatives evaluation. the applicant will never identify any practical,
economic, and feasible alternative that is reasonably available,
The ALJs find that Altair l‘ailtxl to meet its burden to demonstrate by a preponderance of
the evidence that there is no practical. economic: and feasible alternative that is reasonably
at ailable instead of permitting a nevt hazardous waste landfill, While the ALJS cannot say that a
practical, economic. and feasible alternative that is reasonably available existsitltal is not the
~
requirement. Texas Health and Safety Code § 301,106 and Commission titles 335.205(a)t2) and
80‘ l 7(a), require the applicant to demonstrate that one (toes not exist, which nee tatcs that the
applicant conduct tt nteaningtiil analysis. The burden is not on the iii) to do the work for the
applicant, nor is IhC burden on any protesting patty to find the reasonable alternative for the
applicant In this case the evidence was cleargAltatir chose not to do any evaluation of
alternatives, In sum. Altair has failed to perform any meaningful evaluation of the lack of
alternatives to support the need for a new hazardous waste landfill.
C. APPLICABLE SITE LOCATION STANDARDS, INCLUDING GEOLOGIC-

REIATED REQUIREMENTS
~
The parties did not contest evidence Stthmittcd by Altair establishing that the Landfill
meets site location standards relating to wetlandsfgS endangered species habitat?“ tht ~hatge
zone of a sole~sottrcc atuifen‘87 13 mximit') to tthlic drinkinva water suelvt .

lttkest”
x
active
~
at 001320 describing compliance with it) 'l'exas Administrative Code § 335,204(c){21
“5 Altair G4 at 0013 ~ 4; describing compliance with 30 Texas Adm‘ native Code 335
'
F\ 2-2. Att, ~
§ 20«1(c)(1 l).
‘57
Altair Ex.l<2:.t\tt, (i—4t‘tll)‘llJ21,d€Sc1ibltlg compliance with 30 Texas Administlutive Code § 335,204(e;(3).
‘5‘
Aitair Ext 272. A11 [34 at 00132], descvihing compliance with 30 Texas Administrative (lode § 335.2061tex8l‘
SOAH DOCKET NO. 5824 8-1960 PROPOSAL FOR DECISION PAGE 40
TCEQ DOCKET NO 2018s0013-IHW
geological processesfl“ geologic faultsf9° specified land uses such as residences, schools, and
churches;'91 active coastal shoreline erosion;192 proximity to a barrier island or peninsulagl93 and
proximity to lilo—year floodplains.194 Therefore, the ALJs will address those location standards
only in the findings of fact and conclusions of law in the Proposed Ordcrr
The focus of the parties with respect to geologic standards and site location issues was
whether Altair’s evidence satisfied Commission rule 335.204(e)(4)-(5), given that the Landfill
overlays a regional aquifer."’5 For reference, Commission rule 335.204(e)(4) and (5) reads in
relevant part as follows:
(4) A landfill may not be located in areas overlying regional aquifers unless:
~
(B) the regional aquiferis separated from the base of the containment
structure by a minimum of ten feet of material with a hydraulic
conductivity toward the aquifer not greater than 10'7 cm/seo or a
~
interval of more permeable material which provides
' i
' '
equivalent or gicatcr retardation to pollutant migt'ntinn.296
”" Altair 13X. 2-2, Art. 6-4 at 001321—22, describing compliance with 30 'l'cxns Administrative Code §§ 335.2030)
and 204(c)(9). Protestants contested whether flooding (an active geologic process) is an issue with regard to
stormwutcr and leaehate management. as discussed below.
“1"
Altair Ex. 22 An, G-4 at 00l322, describing compliance with 30 Texas Administrative
~ Code § 335.204te)i_13).
‘9‘
Altair Ex. 2-2, Art. 0-4 at 00l322, dos ~
hing compliance with 30 Texas Admi 'straiive Code §§ 335.204ieX6),
and ,205(a)(1). Other land use compatibility issues were disputed hy Protestants, as discussed below.
“'2
Altair Ex. 2-2, Art. 64 at 00l322-23, describing compliance with 30 Texas Administrative
Code § 335.204(e)(10).
m Altair Ex. 2—2, Att. GA 211001323, describing compliance with 30 Texas Administrative Code § 335.204(e)(12).
“7"
Altair Ex. 2-2, Att. (3-4 at 00 l323~24, describing compliance with 30 Texas Adminisn'ative Code § 335.204(e)(l)
and 40 CliR. § 279.14(b)(l l.i). The parties disputed
Altalr’s stormweticr and leachate plan, discussed below.
‘95
Applicable site location standards are also found in Commiss‘ n rule 335.203, stating that the Commission “may
not issue a permit for a new ha7ardous waste management facility“ unless the site, “when evaluated in light of
proposed design. Construction and operational features, reuxnnubly minimizea possible contamination of surface
water and groundwater.“ (Emphasis added). At the hearing and in their briefing, the parties focused on the more
specific requirements in Commission rule 335.204(c)(4)-(5), which the ALJs discuss here. The ALJs address
Commission rule 335.203 in conjunction with their analysis ofthe soil data available at the Site and the Landfill.
‘06
Subsection (A) of Commission rule 335.204{e)(4] relates to “an area where the average annual evaporation
exceeds average annual rainfall by more than 40 inches and the depth to the regional aquifer is greater than 100 feet
from the base of the containment Structure.” It is inapplicable to this case and is omitted from the discussion.
(5) A landfill may not be located in areas where soil unit(s) within five feet of
the containment structure have a Unified Soil Classification of GW, GP,
GM, GC, SW, SP, or SM, or a hydraulic conductivity greater than
10‘5 cm/scc unless:
(B) the soil unit is not sufficiently thick and laterally continuous to
provide a significant pathway for waste migratiou.‘97
The Preamble to the 1984 adoption of Commission rule 335,204 states that soils not
meeting the “10 feet of 1x 10'7 cm/sce criterion will be evaluated in terms of equivalent
protection?”R The Preamble provides the following guidance:
For example, ifthc in situ soils at a proposed site have a hydraulic conductivity of
5 x 10‘? cm/sec and exceed 50 feet in thickness, the applicant may attempt to
demonstrate that these soils provide equivalent or greater retardation to pollution
migration. In addition, the standard does not ailow a thinner interval of less
. . .
permeable soil to he used in place of the 10-foot barrier. Since soil unit
correlations are generally based upon the logs of fairly widely spaced borings,
there is less assurance that thinner units are continuous beneath a proposed
facility}99
The itl—foot soil barrier need not he a single bed of clay. The Preamble explains that “[t]he
aggregate thickness of separate clay beds or other low permeability units may be used to meet
these standards.”200 Meeting the requirements of Commission rule 335.204(e)(4) “will not by
itself satisfy the requirement expressed in [Commission rule 335,203] that soil and groundwater
conditions must be ecnsit‘leril.Mm Ultimately, the “standards which contain the 10 feet of
1 X 10'7 cm/sec criterion . . . are included in view of the extreme importance of maintaining the
state’s major and minor aquifers free of hazardous waste contamination.”202
"7 The Ur LS soil ~ ificatiuns are discussed further below. Subsection (A) of Commission rule 335.204(e)(5)
relates to “an area Where the average annual evaporation exceeds average annual rainfall by more man 40
inches,"
It is inapplicable to this case and is omitted from the discussion.
‘9’
9 Tex Reg 4190 (Euly3l, 1984),
‘99
9 Tex. Reg. 4190 (July 31, NM)
2°“
9Tex.Regi4187Uuly31,1984).
2‘“
9 Tex. Reg, 4189 (July 3], 1984).
“'7
9Tex. Reg.4l89 (July 31, 1984).
50A“ DOCK T N0. SSZJMOGO PROPOSAL FOR DECISION PAGE 42
’[CEQ DOCK~ I NO. ZOISyOOlJ-IHW
TCEQ issued technical guidance for site selection that the parties diseuswd. industrial
Solid Waste Landfill Site Selection 'l‘cchnical Guidance N0. 2 {referred to by the witnesses as
“TG«2“) states that "lhlornogeneous, massive, and nearly impermeable clay and shale beds that
provide a large vertical separation between the base of the landfill and the uppermost aquifer are
preferred locations" [or industrial solid waste disposa [.203 TG-Z ulso references the Land
~
Karat/trees of 71-q man stating that areas classified by the map as “poorly suited for use as a
solid waste disposal facility should be avoided" unless sufficient detail in a site-specific
investigation “documents the suitability (if the area for the proposed [hail ‘
investigation may require a much more significant expenditure to show site suitability it’ a
prnposcd location has stratigraphic complcxities.”S
The discussion or Commission rule 335V204(6)(4) and (5) involves several inter-related
questions of (act and law. As a roadmap to this discussion, thc Al provide the following
overview of the key questions raised by the parties and the ALJs‘ principal findings and
conclusions Each question is then analyzed at length below.
(I) How to interpret the scientific notations related to hydraulic conductivity

in Commission rule ~v35.204(e1t3’l)(l3) (“10‘7 ein/s c an 335.204te‘fl5)
)
(“10‘f cut/sec"). The ALJs find that these notations should be
interpreted as “I X It)” cm/sec” and “1 x10‘5em/sec," respectiv ~
The ALJs also discuss the illternctiml of the two slnndards as applied
to this case.
t2) Whether a “geometric mean“~~ 3 concentunlly appropriate in this case to

analyze the soil evidence The ALJs find there is no established
Commission precedent for use of a geometric mean in this context,
and the degree of variability in the soil indicates that using a
geometric mean has the effect of inappropriately dampening data
outliers.
~
19‘
Alignud l’l‘nti‘slmlls Ex, 1-3 at 036
Aligned Protestants Ex. 1*3 n1035

'3”:
Aligned Protestants Ext l—3 :n 037.
DOCKET NO, 58248-1960 PROPOSAL FOR DECISION PAGE 43
80A]!
TCEQ DOCKET t), zmsnutsvmw ~ ~
(3} Whether the soil at the Landfill meets applicable site location standards.
The Alttls find: the Application tiled in 2013 was based solely on data
from the 19905 that had already been rejected twice by the El); soil
a soil barrier with hydraulic conductiv no greater than

~
data within the Landfill footprint does not con 'stcntly show 10 feet of
u
1 x 10”7 cm/sec between the bottom of the Landfill and the top of the
aquifer; ’l‘CEQ’s technical guidance indicates the Landfill is in an
area poorly suited for waste disposal; the ED‘s finding that the site
location requirements are met conflicts with the evidentiary record;
and the manner in which Altair applied a geometric mean improperly
attributes the hydraulic conductivity qualities of clay to areas within
the Landfill footprint that are insufficiently characterimd.
(4) [low to analyze the calichc at the Landfill. The Al

find that ealichc is
a prominent feature at thc Site and Landfill; there is cvidcn e that it
may be permeable; and. there is no in situ hydraulic conduct iry data ~
for the calichc, such that the preponderant evidence does not support
Altair‘s argument that the culiche will he impermeable,
Therefore, as explained in greater detail herein, the Al find Altair did not meet its burden to
show that the soil beneath the Landfill satisfies Commission rule 335,204(e)(4)(l3) and (5),
l. Hydraulic Conductivity and Scientific Notation of 103'7 cm/scc and 10‘5 cm/scc
Hydraulic conductivity of soil? expres‘d in centimeters (cm) per second (see), is the
“rate of infiltration of fluid through i . i a medium such as a sand or a silt or a clay'm“ or the
"ability 01' water to llow through a porous media?” Conceptuelly, hydraulic conductivity is
"interchangeable" with permeability?“ Soils composed predominantly of clay generally have

lower hydraulic conductivity values (in, they are less permeable) than soils that are primarily
sands or gravel?“
~~
~
'
~ ,3: 633-34.
"’7 'l‘ri
at 1071
m 633. See n/so ED lix, 13 a: i‘) in ~
111 at
~
~ ng permeability and hydraulic conductivity “mean different things

[but] are ottcn used interchangeably when time orounttwatcr flow through a saturated porous media”).
r; a: 343.44, 632733.
TCEQ DOCKET NO. 2018-00l3—IIIW
The difference between a value ufl x 10'? and l x 10'“ is an order ufnmgnitudc. in other
words‘ soil with hydraulic conductivity of l x 10”” etn/see is 10 times more petmeable than soil
with hydraulic conductivity of lx 10‘7 em/s ~ ,

and suil with hydraulic conductivity of
l x 10"S cm/sec is 100 times more permeable than soil with hydraulic conductivity of
l x 10‘7 cut/see?” The scientific notation nf"lO‘7 uni/see," standing alone, could encompass n
range of values from tag, i x 10'7 cmrscc to a more permeable value of 99x 10‘7 Chi/see,
Aligned Protestants contend that the rule requires a hydraulic conductivity oi‘ no niute than
1 x 10'7 curt/see, With the exception of Mr. Graves. the expert witnesses klgi‘tficti‘ Although the
em/sec in Commission rule
~
parties did not spend as much time discussing the notation of 10'5
335V204te)(5}, the same analysis applies. The Al concur with Aligned Prtxtes 3 that both
rules ghould be read to include “l x" prior to the exponent, Further, the ALIS find that the
standard set in Commission rule 335.204lc)t4)(B) of soil with hydraulic conductivity no greater
than I x 10’7 cut/see appears to be the operative rule for analyzing this case.
a. Altair
Altair uttered the testimony of Mr, Graves as well as that of its geologist of record.
Bruce Darling, l‘t(i., l’hl). Dr. Darling is licensed as a professional geologist in Louisiana and
Texas. 2H He holds a bachelor‘s degree in philosophy, master‘s degrees in geology and in
mineral economies, and :1 doctorate in geolwgy.212 Dr, Darling has over 35 years ol‘cxpericncc in
geology and hydregeolngy work,
Dr. Darling characterized the rules as needing "lo be more Consistent in their statement of
what [10” era/sec] is" supposed to mean 3” However, Dr. Darling testified, he generally
interpreted the notation of lU"crn/sec in Commission rule 335.204tc)(4)(B) to mean

1 x [0‘7 out/sec. He stated, "My interpretation is 1 times 10 to the minus 7” but nuded‘ “I don’t
m Alta“ hxv 371 a1003934.

2” ~ Xltaii’ LX, 34 at 003934.
3"“ 1‘:.ar908,
SOAH DOCKET NO, SSE-184960 PROPOSAL FOR DECISION PAGE 45
TCEQ DOCKET N04 20l8-0013—1HW
think it’s meant to be precise, precise, precise”2M insofar as a geometric mean could be used to
achieve the standard (as discussed further below).
Dr. Darling explained that, on a logarithmic scale. there is “certainly” a difference
between, for example, 1 x 10'7 cm/sec and 2.43 x 10'7 cm/sec.215 However, he added, “in an
absolute sense . . . the difference is miniscule.”z'6 lle said that if the values at issue are being
used “as a basis for modeling any kind of transport function [such as pollutants through soil], the
difference would be nearly negligible.”217 As discussed below, Aligned Protestants’ expert
witness disagreed and read the l x l()'7 cm/sec standard as a firm limit.
As an example of a permit for which TCEQ accepted a hydraulic conductivity value other
than i x 10'7 cur/sec, Dr. Darling cited the US, Ecology facility in Robstown, Texas. That
facility is located in the Beaumont Formation and has an upper stratum of clay with “thin sand or
clayey sand lenses" occurring locally. and laboratory testing for samples of thc clay yielded
“vertical hydraulic conductivities ranging from 1.3 times 10 to the minus 8 to 1.3 times 10 to the
minus 7 centimeters per second?“ Dr. Darling acknowledged, however, that the portions ofthe
U.S. Ecology application in evidence do not clarify the depth at which the value of
1.3 x 10" cm/sec was obtained, and the Robstowrr site had “laterally continuous clay from
ground surface to about 30 feet below grade."’219 He conceded that the Preamble specifies “a
maximum hydraulic conductivity ofl x 10"7 cm/scc for l . . in situ soils at proposed hazardous
waste management facilities,”m
7“ Tr. at 865.
"7 Tr. at 865.
~
. at 800-02.
. at 926 (citing Altair Ex. 9).
at 907-08.
SOAH DOCKET NO. 58248—1960 PROPOSAL FOR DECISION PAGE 46
Mr, Graves noted that, as an engineer, he was “puzzled by why a rule would not be
expressed in more precise scientific notation” with an integer, such as 1, explicitly iisted instead
of just “10'7 cmlsee.“22‘ After hearing Dr, Darling’s testimony (and that of the ED’s reviewing
geologist, Sarah Se‘nreier, P.G., as discussed below), Mr. Graves stated in his rebuttal testimony
that he “ha[d] not changed [his] opinion" that Commission rule 335.204(e)(4)(B) could
encompass any value from 1x 10'7 to 9.9 .\Ll()’"’cn1/sec,222 Mr. Graves noted that the rule
(adopted in 1984) predated “modern landfill design . . . with double liners.”233 Thus, he
theorized, when the Preamble describes the requirements for primary and secondary liners, the
modern double-liner standard “sort of negates this preatnble.“22" l 1e acknowledged that there is
no guidance to support his theory, Nonetheless, Mr. Graves said, the absence of an integer with
the 10'7 notation, “tells me there is some iiiteipretation that needs to go along with it.”225
With respect to the standard in Commission rule 335,204(e)(5)t requiring That soil within
five feet of the containment structure not have “hydraulic conductivity greater than 10‘3 cm/sce,”
Dr. Darling said that rule appears generally applicable to all hazardous waste (HW) landfills,”
He noted that Commission rule 335,204(e)(4)(B) more specifically applies to HW landfills

proposed to be sited over an aquifer, and imposes a stricter hydraulic conductivity standard of no
greater than 10'7 cm/scc for at least 10 feet of separation between the landfill and the aquifer.”7
Dr, Darling was asked whether the two rules could be read together in such a way that the
first five feet of soil around the containment unit could meet the 10‘s cm/scc standard and the
~
next live feet of soil would have to meet the 10‘7 em/sec.228 He clarified that he did not believe
12‘ 'l‘t'.
at 1981.
In T . at W794“.
at 1930.
22‘
T . at [980.
1:5 1‘
,at 19m.
m Tr, 11193].
2‘7
Tr, 2:193].
2“ Tr, at 932‘
SOAH DOCK T N0. 582-18496!) PROPOSAL FOR DECISION PAGE 4’7
TC‘I‘CQ DOCKET NO 2tl18<llll13~lHW
meeting the i0‘1 crm‘sec standard to serve as a

the tulcs would allow less: than I!) ‘ect of soil
separation between a HW landfill and an ttquil‘cr.

229
llc explained further that he reads
Commission rule 335.2ll4(e)(_5) to nppb tmly if the soil types its "Li in the rule (OW, GP, (lMa
~
GC. SW, or SM) px’cscnt?” such soils are present within five feet of the containment
~ down
Sl’r tu’c lt‘
structure, Di: Darling rezttls the rule to allow thc soils to have “hydraulic cnnducti '
[to]
10 to the minus 5 centimeters per second, if they are e in lower permlenbility] material
that dncsn‘t allow communication with dccpcr 2ttttcs."2“
b. The ED
'l
he Eli’s cxpctt witnesses concurred that l x l0‘7 cm/sec is the most plausible reading of
the "lO‘7 cm/x‘~ a" notation in Commission mic 335,204(e)(4)(l%), Mr, Vcnka: said he: "txruhciltly”
agrees “1 times 10 to the minus 7" is required, but hc added that hydraulic conductivity values at
a landfill could meet the saintlaril “collectivcly.”m llc also cxplnincd, "l0 to the negative 7 [is]
nothing but l to the part ol‘ncgativc 7 mathematically l . .

[sic tlicrc‘§ no difference hetwecn the
N203”;: llowcvcr, he said than: may bf “room for interpretation" on how the standard is met?“
Mst Schrcicrx the rcvicwing geologist, holds a bacheloris degree in gcolngy and is a
licensed professinual geologist in Texas?” She is a Team Lead in the lndubtn'al and Hazardous
Waste Permit Division and has nearly 20 ycnra of experience with TCEQ.230 Ms, Schreici‘ was
asked whether there was “any question in [her] mind that “ill to the minus 7 [is] not l.2 times
~
1010 the minim 7, not l,7 times 10 to the minus 7,” or any othcr value in the 10'7 cmt’scc
~
~
“‘7
Tr. at 0,023
5‘7
Tr. at 933 l'ht: t‘ ance- oI‘thi: )fli'tinc >0“ categories is dis ~ sscd in thc section addicssing suit (lulu.
"E ‘l‘r.
at 93231
5"
ital me,
~
~~
it. at m3,
n. at 533734
it“
Er) a Hat :,
1“” El’)E.\. Mai 12.

50A" DOCK
TCEQ DOCK
~
~ ~~ 582484960
.2018«00l 3AIHW
range. ’
She agreed that Commission nile 335.204t’e)(4)(B] should be read to mean “1 times it)
to the minus 7 centimeters per second";38 She reads Commission nile 335.2(J4tsl(5). which
references a standard 01’ “10'5 ant/see," to mean that a hydraulic conductivity oi‘nn greater than
“1 times 10 to the minus 5"
something more penneable than

is
that,
~
required "to prevent ieachate from coming into contact with
in closing argument, the ED contended that Aligned Protestants were reading
Commission rule 335.204te)(4)(8) and (5) in such a way that subsection (5) would he devnid of
meaning. The El) described Aligned Protestants as interpreting subsection tc)(4)(‘B) to prohibit
any soil of greater hydraulic conductivity than 1 x 10—7 emr’see between the Landfill and the
aquifer. lt‘ enrreet, Aligned Protestzmts‘ view would “negate the need for the provision in
§ 335.204(e}(5) thn: prohibitfi heating a landfill with soils with hydraulic mnducrivit)’ of greater
than 10‘5 em/see within lire feet ot‘thc base of the euntttnunent structure."m 'l‘he ALJS discns‘;
the interaction ot‘subscctions (9)9l) and (5) below.
c. Dnrmor/LCRA/OI’IC
Dnnnor. LCRA, and OPIC did not provide direct evidence on the question of interpreting
the "10'? cut/sec” notation in Commission Rule 335,204(e)(4)(13). However. all three parties
ugrecd with Align-ed Protestants‘ argument that the rule, read together with the Preamble,
requires a minimum thickneskz of 10 feet of soil with hydraulic conductivity of no greater than
1 x 10‘7 Clll’SOt): or an eqmnly protective layer. as aquifer resource protection standardsm
m
~
~
l698-99t
~
1r. at
3‘”
Tr. at 1699. ye a lr.at l7l5-ttrt
‘
at 1700.
~DColuniet‘at
~ 13-14,
W t'Jannor initial Brief at 26; LCRA initial Bnofat 10, CPR} Initial Brie-fa:
SOAH DOCKET NO, 58248-1960 PROPOSAL FOR DECISION PAGE 4‘)
TCEQ DOCKET NO 20l8~l|0l3vlllw
d. Aligned Protestants
Aligned Proiosianis offered the iesiimony of H. Rclffert Hedgcoxt, PU. Mr, Ilollgcoxc
holds bachelor’s and master‘s degrees in geology, and is a licensed professional gcoscienlist in
'1‘:a and Louisiana};2 lie has over 30 years ol'cxpcricnce in groundwater, surface water, and
soil impact issues related to huarduus and non—hazaidous W~LC 2‘? i
Based on his reading of Commission rule 335.204(o)(4)(]3) and the Preamblu,
Mr, Hellgcoxc testified that he helievcs the rule means “I timcs ll) 10 the minus 73’1"" He
acknowledged ihot lhv rule docs not contain that precise language. but reiterated that his reading
is’ "consistent with whul‘s written in the Texas Register and olhcr placesl‘J‘q“ Aligned
Prolcstanis also point in a statement in ihc Picamhle than refers to the “10‘5 cm/sm~ notation in
Commission rule 335.204“ ~ 5) as requiring “that soil units within five 1%c oi‘ihc faciliiy shall
not have a hydraulic conducu‘viiy less ihan or equal in l X 10'3 cm‘scu unless a more stringent
faciiiiy design modifi 'uliox: is allowed," or a dcmonshmii‘m is made that the soils do not permit a
significant pollution migration pathway?“
e. ALJs’ Analysis
ii Interpretation of Scientific Noiatiim in Commission rule

335.204(c)
All hm one of the live experts who icsLificd in (his case agreed that the noiaiions ol’
“10'7cnx/‘5cc" and "10‘5 cm/sec" in Commission rule 335.204rdli4iil-3) and (5), TChpCCliVCly,
should be read as “l x l()’"’ uni/sec” and “l x 10‘5 cm/‘secf‘ 'l‘hc ALJs agree with (he majority
~
View. Also, despite Din Darling’s opinion thal thai’e is a “minuscule” or "nearly negligible"
7")
Aligmd I’micsm 1-] it 027,
m ~gnud Pmlchtanls by 1 ill 00:.
“‘ 11211053.
M‘ 'l‘r.
Li 1053,
"“~ 9 ‘l‘cx.
ci 4|8’.’ ()uly 3|, I934) (umphasis nddCdl-
SOAH DOCKET NH 58248-1960 PROPOSAL FOR DECISION PAGE St)
difference between, tag, I x 10‘7 cmfsec and 2.43 x 10'T Clllf'SBC, the Aids find that the rules and
Preamhle repeatedly refer to “maximum” values of l x to”? Gin/sec and l x 10'5 cm/sec‘ which is
incnnsistcnt with accepting it Flexible range of values l he one example in the I cord of a
'l‘Cl—itwovetl dcpamtre from the 1 x ltlfl’ Gin/sec standard was the US. Ecology site‘ which is
not comparable to Altair because it has a continuous 30-foot layer ot‘eluy across its site and it is
unknown at what depth the outlier value (L3 x 10’7 miss~ ~*) was obtained.
Notably, the Preamble states that “lt‘jor approximately 10 years, the [Commission] has
used a maximum hydraulic conductivity value of l x 10’7 cm/sec in technical guidelines and in
permits to designate primary liner soils which are practically iinpewiousf’l‘g The standard was
chosen heeausc it is “typically associated with clay“ and “accepted in engineering
literature . V . as representative at an effective barrier in fluid transpm'tf'z'1g The Commission

“elected to apply thi. ~same criterion with regard to in Sim soils at proposed [NW] management
l‘aciliticsf'zso’ ‘l‘het‘eforc, the ALIS find that although Commission rule 335.204te)(4)(B) and (5)
do not spell out “1 X" before the exponent, the standards should be renal to include in
ii. Interaction of Standards in Commission rule 335,204tu)(4)(l3)

and 335.204tex5)
'I‘hc Aids read Commi ~ n rule 335204036) to impose a mstriction on all
HW landfills. prohib ng any IIW landfill from being located in an area where soils within five
feet (in any direction) of the containment structure have the proscribed features 'lhe Al 15
disagree with Dr. Darling’s interpretation that Commission rule 335.204(e)(5) is applicable. and
the 1 x 105 uni/sec standard for the first live feet of soil is applied, only where the soil in the first
~ The F :mblc notes \lmt soil with ~~'dmuliu conductivity of S x 207cmr'scc co' 1 he (1 [He‘ll equiialent
~~
~ ~
~
~ ~
pmtection it‘it exceeds~50 feet in thirknes ngthe ’Wme 1w ~ a ltydmuuc conductivity er] 3 x 10" tin/sec could,
have been found in i: fem or more below ground at the L’ cology site and have been deemed complianL
‘
5" 9 Tex. Reg. (“89-90 (July 3|, 1984).

H" 9 Tex. Kt‘g. 4189»90 {July 3|. l984)
’59
9 let. Reg. 4190 (July 3t. 1984‘»
SOAH DOCKET NO. 58248-1960 PROPOSAL FOR DECISION PAGE 5]
TCEQ DOCKET NO 20] 8-0013-IHW
fivefoot radius is classified as GW, GP, GM, GC, SW, SP7 or SM. The rule clearly contains an
“or” between the list ot'soil classifications and the 1 x 10'5 cm/sec standard:
(5) A landfill may not be located in areas where soil unit(s) within five foot of
the containment structure have a Unified Soil Classification of GW, GP,
GM, GC, SW, SP, or SM, 9; a hydraulic conductivity greater than
10'5 cm/sec unless . ,25' .
Therefore, the Allis find the correct reading of the rule is that soil within five feet of any
llW landfill may not have either the listed soil classification standards or a hydraulic
conductivity in excess of 1 x 10'5 Gin/sec unless the soil unit “is not sufficiently thick and
laterally continuous to provide a significant pathway for waste migation"252
The ALIS further find that the standards in Commission rule 335,204(e)(4)(B) and (5)03)
should be read together as follows, First, no IlW landfill, whether or not it overlies a regional
aquifer, may have soil in a five-foot radius of the containment structure that is classified GW,
GP, GM; GC, SW, SP. or SM or has a hydraulic conductivity in excess of! x 10‘5 cnt‘sec unless
the soil unit at issue is thin and discontinuous such that it does not provide :1 significant pathway
for waste migration. Second, if an 11W landfill overlies a regional aquifer, it may have the
characteristics described above for the first five feet of soil in all directions of the containment
unit, but it must also have at least 10 feet of soil that has hydraulic conductivity of no more than
1 x 10'7 cm/sec between the bottom of the landfill and the top of the aquifer. In other words, the
Landfill could have soil with a hydraulic conductivity of 1 x [0'5 cm/sec in the first five feet
under the bottom of the Landfill and still meet site location standards if (i) the five-foot soil unit
is sufficiently thin and discontinuous to prevent significant waste migration and (2) there are
10 more feet of soil between the bottom of that five-foot unit and the top of the aquifer that have
~
hydraulic conductivity of no greater than 1 x 10'7 cm/sec.
~
25‘
Emphasis added
252
As
previously mentioned. this is the exception listed in Commission rule 335.205(e)(5)(B); the exception offered
in subsection (A) is inapplicable to this case,
TCEQ DOCKET 3'0, 2018»0013-[HW
In sum Altair may be compliant with site location standards it‘it shows that (A) tip to the
lirst five feet around the Landfill incct thc standard of Commission rule 335,204(e)(5) and the
next 10 (cc! mcct tho standard oammission rulc 335i204tclt4ltl5‘). or (l5) the first 10 that have
hydraulic conductivity ofno greater than 1 x 10‘7 (In/sec, which is sufficient to satisfy both rules.
~~
has been mi establ._.liing that their: are at lanst lO fest ofsoil
In this case, the focus nl'thc partits
separating the Landfill and the aquifer that meet the standard in Commission rule
335.204(C)(4‘)(B) and have hydraulic conductivity no greater than [ x [0'7 cit/sec Altair has not
sought to invoke Cnmmission rule 335,2()~lt_c)(5‘) to apply to the first five foci of soil in the
manner described in (A) at the beginning ut‘this partigraplii
The Al mic that the analysis in this subsection 0f the PFD may Seem excessive given
that :hay conclude the pertinent metric is contained in (inmmisninn rule 335.204(c)(4)(B)i
However: the analysis is necessary hacausc both subst‘ctions (CH4) and (2)6) apply and their
interaction must he understood.
2. Concept nfGemnctric Mean
:1. Definition and Examples
Another qusstion ol‘ interpretation raised by the parties involvcs the use by Altair of a
geometric mean to illustrate that the Landfill is scparatcd from the aquifer by soil meeting the
“Minn of no more than 10‘7 cut/soc,~
~
standard of at least a barricr with hydraulic conductivity 1 x
As explained by Dr. Darling, statisticians look at the dislrihntinn and “central tender
’
ofa data
253
set in order [0 draw conclusions about thc data. Three measures of central tundency arc the
“arithmctic mean" or “average” (the sum of all the data points, div~ ~ Cd by the number of data
points); thc “median” (the value representing the 50th parcentile of data arranged in order from
~ Tam
'
1783,1788.
~
TCEQ DOCKET Nor 2018-U()l3-IHW
lowest to highest);254 and the “geometric mean” (the nth root of the product of n numbers, as
further explained below).255
The parties provided several illustrations to clarify the impact of using an arithmetic
mean versus a geometric mean. Dr. Darling gave the example ol‘ wanting to understand the
average income of “a small number ofn‘iiddle-income earners”256 The inclusion ot'a billionaire
such as Bill Gates in the data set will skew the arithmetic mean to a much higher number than is
actually representative of the group. Mr. Gates is an outlier whose income has the effect of
“overestimatfingl the ‘true’ mean. ’m’ In that data set, the arithmetic mean is a “biased
258
estimator“ of central tendency that will not show the central tendency of the data values.
According to Dr. Darling, using a geometric mean “reduces the effect of outliersfl” and would
he a more reliable way of understanding the average income at issue.
Aligned Protestants counter with another example. A charity that wants to identify
wealthy potential donors is better served by looking at individual data points related to income
(instead of average income) to find outliers who may be good targets?” Similarly) Aligned
Protestants argue, suppressing outlier data points is counterproductive if the goal is to identify
any areas of the landfill site that afford insufficient soil protection to the aquifer?“
In another example provided by Dormer, a speed limit on a particular road is 50 miles per
hour (mph), Three cars travel the road at speeds of, respectively, 30 mph, 30 mph, and 100 mph.
The central tendency measures for this data set are as follows:
35"
AltairSupp. l-Ix. 3-3 at 000022-23.
m Tr. at 1783.
5‘
Altair Supp Ex. L} at 000022-23.
’37
Altair Supp. Ex, 3-3 at 000023.
25“
Altair Supp. Ex. 3-3 at 000023.
25" 'l‘r.
at 1782; Altair Supp. Ex. 3-3 at 000023
2"" 'l‘r. at 745, 1813-14
6'
Tr. at ISM-15.
5 All DOCKET NO. 582-18496!) PROPOSAL FOR DECISION PAGE 54
~
EQ DOCKET NO. ZEtIE-OOIBJHW
~
’[
0 The arithmetic mean of the three speak i< ~~

. I.» mph (in, 30+3'0‘ 100 divided
- The median 30 (the value repregenting the 50th percentile nt'data arranged
is in
order Front lowest to highest): and
O The geomet‘ic mean 44.04 mph. The geometric mean is defined an the nth root
is
ofn values multiplied togetheiz Here, there are three veJues, so it = 3 and the cube
"
root is the nth root. Multiplying 30 x 30 x 100 90,000. The cube root ot'90,()00
is 44.64?“
if the goal is to determine whether any car exceeded the speed limit, the arithmetic mean
(53.33 mph) would indicate that there is at least one our driving at 50 mph or greater. The
geometric mean (44.64 mph) would dampen the effect of the outlier (the cur traveling 100 mph)
and would wrongly indicate that no car traveled over the speed limit.”4
Dr. Darling said a geometric mean can be calculated far a normal data set. but it is
particularly useful when applied to a “legnormal data set."255 A “normai” data distribution
typically resembles a bell Curie where the data has a symmetric distribution and the arithmetic
mean and median both at the center Dime curve at the 50th percentile.266 Dr, Darling cited
human intelligence measured by 1Q scores as one example of a nnrmal data set that funns a bell
curve?“ Average 1Q is around 100 points which is the median (the 50th percentile) of the. hell
curve,26g Approximately 68% of 1Q scores will be within one standard deviation of 100 points‘
97% will be within the second standard deviation, and 99% Within the third Standard
2“ That is ~ ,
m Tr, at 1848, Darling reticulated the cube row as 44.64 (per the hearing transcript)
[)r.
'l‘hc ALIS calculate the
cube root as 4431‘bill[he(iiitcrttluctsium’ldlcriai in: purpose; Ofill‘iSCiiSCUSSiOIL
W Tr. at I829~30.
“‘5
in at 77041, Him-81
2“ Tr at l781-82;AltairEx '3 at l.
24"
Tr. at 1793.
“5 Tr. at [700.
TCEQ DOCKET NO. 2018—0013-1HW
deviation,269 A normally-distributed data set will create a normal probability plot (resembling a
straight, diagonal line) when plotted against the “I. scores" for that data.270
By contrast, a data set containing values that differ by two or more orders of magnitude,
or that cluster around a value, will have a “lognormal” distribution and will have an asymmetric
pattern instead of a bell curve.27' ifa statistician simply calculates the arithmetic mean “without
any kind of data transformation to normalize the distribution" in a “lognorrnal data set” the
result will be “a mean that overestimates what we call the true meaning of the population,” per
Dr. Darling.Z72 For example, the arithmetic mean of a “lognormal data set” could indicate “that
80 percent or so of the samples are below average, and that makes no sense.”273
Drr Darling testified that “normalizing” a “lognorrnal data set” can be accomplished by
translbrming “the data into their natural logs [logarithms],”m That will give the data set a
distribution more like a hell curve. And, when plotted as Z scores, the “normali7ed” data points
will distribute around a straight, diagonal line that is more like a normal probability plot.27S
'l‘aking the average of the natural logarithms will produce the geometric mean of the data set.”
The geometric mean ot'a normalized “lognormal data set," according to Dr. Darling, permits a
2‘9
Tr. at 1782.
27°
The “Z score” is a data points number of standard deviations from the mean. It is the valuc (raw score) of a
given data point, minus the average score, divided by the standard deviation from the were. For example, it the
average [Q score is 100 points, and one standard deviation is 21 points, a person with an 10 score of 132 points
would have a I score of1.52 ((132-100)’21 ; 1.52), indicating that this person has an 1Q score that is 1.52 standard
deviations from the average (mean) 1Q score, The normal probability plot is generated by plotting all of the data
points (m, the raw {0 scores in this example) against Z scores, and would be close to a straight, diagonal line ifthe
data is normally distributed. Tr. at 1793-95 (example created by Al).
27’
Tr. at 1732-83; Altair Ex. 13 at 2‘
2” Tr. at 1782-83.
273
Tr. at 1783.
27‘
Tri at 1784. Dr. Darling provided formulae that are depicted in Altair Exhibit 13 but are not reproduced here.
275 'I‘r. ut1795.
27‘
Tr. at 1784. As previously noted, the geometric mean may also be calculated by taking the nth root of the
product of n numbers
TCEQ DOCKET NO. 2|)lS-(ltll3—1HW
statistician to better understand the data because it provides “the balancing point . . l and a true
central measurement” of the data sot,"77
hi Purties’ Positions
The parties vigorously contested the validity of Altair’s use of a geometric mean to
characterize tho hydraulic conductivity ofsoils at the Landfill and the Site,
i. Altair
Dr. Darling stated that their: are many soionces‘ including geology, in which data has a
lognormal distribution, and application ol‘ the geometric mean is second naturc to those of us
who deal with it"273 lie tostiiied that it was “the responsible thing to do for a consultant” (such
as himself) to provide "to :1 client and to it rcgllltttoiy agency" the spccmim of central tendency
calctilntions He noted, "I‘ve given you an arithmetic average, I’ve given you a geometric
mean, and PW: given you the median.“ It “is a matter thcn for TCEQ to resolve among
themselvefi" as to whivh measure is most meaningful For purposes of assessing hydraulic
conductivityggc
1):: Darling said in: is aware of one application, iiicti with Till-2Q by Waste Control
Specialists l,l.t_‘ (WCS) for a renewal permit at its hazardous waste facility in Andrews County.
that he said used a geometric mean to characterize sods?“ llc conceded that the WCS
application tlid not appear to have resulted in a contested case hearing: moreover, he first
reviuwcd that application approximately one week prior to thc hearing on the merits in this case
~
2“"
'
Tr,
,at [795.
til I795,
m ll: at lf.
m Tr, at 1815.
3“ Tr at 927.
$0M! DOCK NO, 58248-1060 ~ ’
TC EQ DOCKET N07 2018A0013AIHW
and did not relcr to it during his preparation of the geology portions of tho Applieatiott.”2
Dr Darling rccognixud that the site he had described as comparable to Altair (the 115, Ecology
facility in Robstown, lcxas) did no/ use a geometric mean to demonstrate site suitability?” He
also acknowledged that, while he has worked on disposal sites for lowlevel radioactive waste,
he had not worked on it hazardous waste landfill permit prior to the Application.2M
ii. Aligned Protestants
Mn Hedgeox’c is familiar with the concept of a geometric mean and said “in ccttairt
circumstances" it can be an accepted method to evaluate soil boring data,2M He said it was
~
inappropriate to usc a geometric mean in Altair’s case because “otttlicrs can affect the overall
performance ol'the [Landfill] soil 1101 should not be excluded?“ ile opined, “any attempt to
evaluate the site [that] elimintttclsl outliers , t i would he a mistake. view A site assessment should
consider small areas of soil thttl could permit leaching to the aquifer; the applicant “should
actually go out and actively look for [such areas] and demonstrate that they are not prcaen [3:189
The central tendency of a data set is a relevant consideration. Mt: llcdgcoxe said.
However, he found it “equally important to look at 1hr physical distribution. spatial distribution
of the data points laterally across a site and vertically and then make a determination as to
whether or not there‘s evidence that it’s a [potential transmission] corridor or not.”289 When
soils contain high percentages ol‘saud and the hydraulic condttctiv y
not to “overlook the potential that a vertical pathway may

is
exist in the area

variable, it is
ofthe landti ~~
important
t,
"‘2 'l'r
(H92 -27‘
7’“
Tl. M926.
2‘“
rmmmm‘
~ ‘
. at 1085
W; '11-. m with,
“’7 'lr, at l l26.
1” ‘l'r.at 1126.
“‘9
TL at1l27
39“ 013
Aligned PruLeMunt: EX, 1-1 at
SOAH DOCKET NO 58248—1960 PROPOSAL FOR DECISION PAGE 58
'I'CEQ DOCKET NO. 20l8—0013-IHW
iii. The El)
Mrs Venkut testified that he could not “specifically say that [a geometric mean] has been
used or not used” to analyze data in any other landfill applications in his 25-year history in
TCEQ’s industrial and Hazardous Waste Permit Division?91 He said a geometric mean may
have been used, but he could not recall a specific instance.292 lo a discovery response sponsored
by Mr. Venkat, the ED stated:
After review of documents readily available to the Executive Director, no permit

to which the geometric mean of sampling results was relied upon to find that an
application complied with the requirements of 30 TAC Section 335.204(e)(4)(B)
has been identified. An application geology report typically relies on an
all-inclusive (holistic) approach that encompasses statistical analysis of results
such as arithmetic mean, median, and/or geometric mean.”3
Ms. Schreier stated that she could not recall, but believed that a geometric mean may
have been used in the only prior hazardous waste landfill application she has reviewed, for
Ascend Performance Materials’ facility at Chocolate Bayou, in Galveston County?” She noted
that, while Commission rule 335.204(e)(4) does not mention geometric mean, use of a geometric
mean could be “viewed as an equivalency demonstration" to show that a landfill that did not
meet the requirement of at least 10 feet of low permeability soil (no more than 1 x 10’7 cm/see
hydraulic conductivity) nonetheless offered equivalent protection.295 In assessing an equivalency
demonstration, Mst Sehreier said she would follow the example in the Preamble that states “if
have a hydraulic conductivity of 5 x 10"7 em/scc and exceed
the in Sim soils at a proposed site
50 feet in thickness, the applicant may attempt to demonstrate that these soils provide an
equivalent or greater retardation to pollution migration”295
19‘
TL at 1538.
1” ‘1'r.at 1125
1” Altair Ex. 9 at 5: Tr. at 798-99.
29‘
'l‘r,ar1575,1658,
2‘”
Tr. at 1716-17,
1% T2“. at17l7~18,
TCEQ DOCKET NO. 2018—0013JHW
Asked why the geometric mean was “an appropriate piece of information to 1154c” in
evaluating Altair‘s soil data, Ms. Schreier stated that “the geometric mean is typically used with
lognorrnal data sets."297 Asked if she could explain “what a lognomiul data set is and Why the
geometric mean is appropriate to use in those circumstances," Ms. Schreier said, “No, not
coherently." She elaborated that it was “beyond [her] knowledge of statistics” and stated she
“did a cursory look at what it was for and whether or not it seemed appropriate for this set."293
She added that she “is capable of doing the math" to calculate a geometric mean, and noted that
“what research [she] did into the default assumptions seemed consistent with the site
conditions.”299
Ms. Schreier agreed that a geometric mean tends “to have the effect of dampening the
impact of outliers in a data set” and conceded that, if the goal was to identify outliers in a data
set, the geometric mean is not the appropriate analytical tool,300 Although Dr. Darling testified
that all three measures of central tendency should be provided to TCEQ for its consideration, it
appears the Geology Report includes only the geometric mean and the median, which satisfy the
l x 10'7 cm/sec standard,301 The record does not establish whether, during its review, the ED
requested that the arithmetic mean he provided as well.
iv. DarmorlLCRA/OPIC
Darmor criticizes the use of a geometric mean as an attempt to substitute a “mathematical
calculation for “a thorough subsurface investigation.”302 Commission rule 335,204(e)(4)(l3) sets
a standard requiring soil with hydraulic conductivity of no greater than l x 10'7 cm/sec, Darmor
argues a geometric mean is misleading in this context because it indicates whether “a limit is
197
That l767.
1% 'J‘r.
at l768.
2” Tr at 1776.
3”" 'l'r. 1771—72,
at
3“"
Altair Ex. 2-2‘ Am G at 001391.
3” Dannor Initial Briefat 18,
TCEQ DOCKET NO 2018—00l3-IHW
typically met in an area” and provides “a false answer” to the question of “whether a standard is
being continuously met”303 Dr, Zornberg testified that a geometric mean “minimizes the impact
of extreme values in the data, which is particularly inconsistent with the fact that the flow at the
site will ultimately be dominated by regions where the hydraulic conductivity is the highest?”
LCRA comments that Dr. Darling criticized the arithmetic mean of a lognormal data set
as a biased estimator, but “the very same thing can be said for the use of a geometric mean which
lessens the impact of any ‘outlier" sampling?!“ Even if a geometric mean were an acceptable
concept to apply to highly variable data, LCRA argues that it would be “more reliable, and
defensible, if there were a greater number of samples and results” included in the calculation,306
OPIC cautions that, “in this case, applying the geometric mean for the data ti'om across
the landfill footprint may mask the impact of locations with higher hydraulic conductivities
within the site.”D7 In Ol’lC’s view, it is “more appropriate and protective [of an aquifer] to
consider outliers while representing the data using the central tendency measurements,”308
c. ALJs’ Analysis
The ALJs find no reliahle evidence that the geometric mean is a tool the ED or the
Commission has used in prior hamrclnus waste landfill applications. Commission

rule 335,204(e){4) makes no mention of how an applicant is to make the requisite showing
regarding soil thickness and hydraulic conductivity, Therefore, although central tendency,
arithmetic mean, median, and geometric mean are not concepts included in the rule, they also are
not explicitly excluded as analytical tools. Regardless of the method used to characterize the
3“ Darmor Initial Bricfat 27-28 (emphasis in original),
1‘”
Darinor EX. 2 at 49,
"’5
LCRA initial Briefat ll.
“6 LCRA Initial Brict‘at l2.
3‘"
OPIC initial Brief a: 12
“3
OPIC Initial Briefm 13,
SOAH DOCKET NO 582«18~1960 PROPOSAL FOR DECISION PAGE 6]
TCEQ DOCKET NO. 10t8v0013~IHW
data, the applicant must demonstrate that an HW landfill will be separated from an underlying
aquifer by either (a)at least 10 feet of soil with hydraulic conductivity of no more than
1 x 10‘7 cm/sec, 01(1)) soil with “equivalent or greater retardation to pollution migration."309
As explained by the expert witnesses, the purpose of using a geometric mean is to
dampen the impact of outliers and to provide a more normalized central tendency of a data set
that has considerable data divargcnce, such as data points that differ by two or more orders of
magnitude (129., what the parties called a “lognormal data set”), And, as detailed further below,
the Landfill and the Site are characterized by significant variability in soil composition. with the
range of hydraulic conductivity values constituting a “lognormal data set.“
in the example Dr. Darling provided, where the goal is to understand the average income
ot‘a group of middle-income earners, it is logical to apply a geometric mean to dampen the effect
of the obvious outlier (Bill Gates). The geometric mean as used with that data set is helpful to
answering the question posed in that example it is not similarly helpful in assessing the location
standards for the Landfill.
The Commission in adopting rule 335.204(e)(4) and (5) stated that its goal is to identify
“only those locations which are clearly unsuitable.”3m The standards in the Commission rules
are set “in View of the extreme importance of maintaining , . . aquifers free of hazardous waste
contaminationtml 'l‘hesc policy statements argue against an approach that lnufiles anomalous
data to achieve a more normalized data distribution. instead, the goal is to identify outliers and
specifically analyze whether they disqualify a site for having inadequate aquifer protection.
“Normalizing” the data set would he counter to this approach,
The ALIS conclude that the geometric mean is an inappropriate concept to use in Altair‘s
case, given the variations in the soil characteristics at the Site and the objective of ruling out
10"
9 Tex, Reg. 4190 (July 3 ll l984),
3'0
9Tex. Reg. 4135 (July 31, 1984).
"I 9 't'ex. Reg. 4189 (July 3L I984).
SHAH DOCK~ N0. 5824 84960 v'l‘ PROPOSAL FOR DECISION PAC E (32
’l”(Il-‘.Q DOCKET NO. 2(ttR-[l013—1HW
unsuitable locations Further, as explained hciow, the tcomett‘ic mean as apfllic’d by Altair
skews the data set because hydraulic conductivity was not cstahlislicd for sand 51111111l and
calichc ntcas.
3. Soil Data and Application of Geometric Mean
nt Overview
referred to as “Unit Beaumont

~
The Landfill is proposed to he locatcd in what is 1," the
Formation, which is the uppermost stra‘ ‘étpltic formation at the Sikh“: Altalr’s Geology
Report described the Beaumont Formation as “composed of light gray to mdvbmwn clay
typically classiliehll as lean to fat clay (linilicd Soil Classification System (USCS) Sytlli‘vtlib C1.
to (Ill. Icspcctiwly) with occasional pockets of mice to moderate amounts at. line sand?“
Mr. ilcdgcoxc testified that the Beaumont Formation is "characterized by variable clayey
sands/sandy clays with occasional grew-4:15, calichc (calcium carbonatc) nodules, and iron/iron
mangancsc nodules?” ‘4
The clay in the Beaumont Formation within the Site varies in thickness from 10 feet to
35 feet, and is “mom typically approximately 20 to 25—[tcctl thick in the \icinity" of [ht
Landfill-"5 Due to excavation at the MSW site, the clay in “the suuthcrn lmli‘ ol' the property
[Site] Shows thickncss of 5 [i‘eetl or loss toward the sotith,”"”‘ The Geology Report states that
[Inca horings ( discussed further below} indicated "a zone (albeit isolated) with moderate amounts
of sand within inn 1‘ [but] this feature was not observed within the [Handftll footprint":m
()tltcr “sondter pockets appear isolatei and when present: are found [in} surl'icial tupsoilst in
“3 Attn~~ Ex, 3 at 003903 Although wine witncsscs micrrcd to rhe Benttmmn Formation "Beaumont Ctn)
~
as thc
Alt tlo not use the latter term,
~
tlli‘ nature ofthc soils at the him and Lnndfiil arc disputcd, 30 the
m Aitair 11x. 2-17“ Alt. 6 at 002234. 1,7 ulaesilications are discussed in more detail below
i“ Aligned Protestant: Ex. 5.11004.
~
1
3” Altair liK 2-3t Att, G at 003383,

"‘5 002234V
Altair Ext 2- , ~ i at
‘” Aitnir Ex 7:2. Alt 0 at 002234.

TCEQ DOCKET NO. 2018-0013-KHW
occasional thin sandy or silty lenses, or at the deeper contact zone with the underlying unitH”m
Caliche is present “throughout” the Sim, “varying from widespread zones with no caliche
encountered, to other zones with substantial cal iche material present?”
Unit II, the Lissie Formation, is “the uppermost part of the Chicot aquifer," part of the
Gulf Coast Aquifer System.320 The thickness and permeability ol’ soil separating the bottom of
the Landfill in Unit I and the top of Unit II is at issue.
In addition to hydraulic conductivity test run on soil samples, the data includes grain size
analyses. A grain size analysis is “performed by passing a sample of soil through a series of
sieves in order to measure the distribution of different size particles (by

percent)”321 The
analysis will help identify “the mix of grain sizes, the proportion of fine and coarse grained
materials, and the dominant grain sin in a sample.” Fine-grain material such as silt and clay will
pass through the No. 200 sieve, which is 0.074 millimeters in size.322
“Atterberg limits” are also tested for soil classification purposes The Atterberg limit
refers to the “plasticity range of Iine'graincd soils,” and the testing process measures the “water
content at which a soil behaves as a liquid, and the water content at which the soil behaves as a
plastic material[.]"323 A combination of grain size test results and Atterberg limits data helps
classify soils according to the USCS.324 Soil classifications of relevance here include SC (clayey
sand). CL (lean clay), and CH (fat clay).325 In addition, the soils listed in Commission rule
as impermissible “within five feet of the containment structure” are

335.204(e)(5)
“‘ Altair Ex. 24, Att. G at 002234.

n Altair Ex. 2-2, All. (3 at 002234. Calichc is discussed separately, below.
“0 Altair Ex. 3 31003905.
31
Altair Supp. Ex. 33 at 000014.
32
32
Altair Supp, Ex. 3-3 at000014.
:2
Altair Supp. Ex. 3-3 a1000014.
‘25
SOAH DOCKET NO. Sill—[84 960 PROPOSAL FOR DEClSION PAGE 64
TCEQ DOCKET NO, Zols-OGlJ-IHW
GW(well-gradcd gravel); GP (poorly~graded gravel); GM (silty gravel); GC (clayey gravel);
SW (well-graded sand); SP (poorly—graded sand); and SM (silty sand)326
1). Prior Landfill Applications and NOD Letters
The MSW facility became operational in approximately 1973‘327 it occupies about a
quarter of the Site (roughly half of the southern portion of the Site).32g Two subsequent landfill
applications for portions of the Site were filed by Altair’s predecessors in interest, In the early
19903, Trioil Environmental Response, Inc, ('l‘ricil) filed an application for permit No, 39093
“(1 ) to convert the site from a MSW site to an industrial non-hazardous waste site and (2) to add
an area to the existing permitted facility.”329 The proposed area was generally within the
southem half of the Site, The BBB“ identified technical deficiencies at the proposed location,
stating that it “poses potential environmental problems as it is in an area of relatively high
precipitation with shallow groundwater and extensive sand and gravel formations.”331
An August 5, 1994 NOD (Trieil NOD) issued by the El) expressed concern with the
permeability of soil at the Site The Tricil NOD noted that the proposed site was “within a
region (three counties) where large volumes of fine to coarse sand and gravel are mined from the
water-bearing formations" and located “within a major drainage basin”332 The “presence of a
shallow and thin confining layer underlain by an extensive relatively rapidly moving aquifer has
been established” below the site,333 Based on these conditions, the ED concluded that “'l'ricll’s
m Tr, at l847-49r
~
’27 l‘r. at l540.
3” Altair Ex, 44 at 004939 (map)

’19
Aligned Protestants Ex. [-10 at 072,
33"
The Tricil NOD was issued by the Texas Natural Resource Conservation Commission, a predecessor agency.
35"
Aligned Protestants Ex. 1-1] at 072‘
’32
Aligned Protestants Ex. 1-11 at 082,
*3
Aligned Protestants Ex. 1-11 at 082,
50AM DOCKE'I
CEQ DOCKET
'I
~
~ 2018-008»l
1582—1841760
.
waste management operations must overcome the geological and locational drawbacks to he
protectitc ol‘htnnun health and the emironmout,””“
The “Hell Mfl) also stated:
Considering the numerous types and potential volumes of non-hazardous

industrial waste which could be received at the site, we are concerned with (1) a
single liner with less than 10 feet of low permeability clay and (2) areas of the
proposed facility which do not have the minimum required thickness of five
(5) Feet of homogeneous and continuous natural clay above Unit 11 with an
in-situ
x 10'7 or as noted in
(vertical) hydraulic conductivity (K) of l uni/see less
Technical Guideline Not 3, Landfills.335
The same permit application (No 39093) was the subject of an April I l, 1996 letter to
Laidlaw Environmental Services (Altair) inc. (Laidlaw), the owner of the property after 'l'ricilim
This letter (Laidlaw NOD) states that some, but not all, of the ED’s concerns regarding the
proposed industrial solid waste disposal facility had been addressed by additional data submitted
However, the “site and the proposed operations” were deemed not to satisfy the permit
requirements due in part to the following deficiencies:
l The absence of at least five (5) feet

of uniform clay, with a hydraulic
conductivity of l x 10'7 cubic feet per
second (cfs) or less, separating the
proposed cell and the lower aquifers and extending throughout the unit;
ml. Failure to clearlydefine the site ground-water hydrology and to properly

address questions on separation thickness, depth to the first aquifer, flow
velocity and flow direction of the groundwater, and groundwater
quality.337
A second application (Permit No. 39096) was filed to propose a landfill in the northern
half of the Site in the same timeframe 09905)}38 The record is unclear on how
3?“
Aligned From in
“‘35
Aligned Protestants EX, 1711 at 072'
3‘5
Ailgnt’d Protestant ~ 5‘4, l~lO at 069
~~
5” Aligned Protestants F l-ll at (069,
‘” 3:92 (map).
Altair izx, 4-4
SOAH DOCKET NO 58248-19“! PROPOSAL FOR DECISION PAGE 66
TCl DOCKET M). 20! S-QtlU-IHW
l‘crmit No. 39096 was processed h} the Commission, but no permit was issucd and no landfill
construction on the Site is shown to have resulted from that application,
In 2013, Dr. Darling evaluated the data accumulated by 'l‘

~ and Laidlaw in the course
of the prior applications (collectively. the 19905 Data) and determined it was sufficient to meet
the site location requirements ol‘ Commission rule 33S,204(e)(4)(8l and (5):?” The 10905 Data
was the basis of thc Application as initially submitted On Vlauch 18, 2014, the ED issued a
technical NOD (20M NOD), The 20M Noll prepared in relevant purl by Ms Schreier, listed
the following concerns; cross»rel‘ercnccrl In the respective parts ot'thc application:
Section II. — Facility Siting Criteria
Section lI.A.4
3. Pursuant to 30 ’l'AC Section (§) 335,204(e)(4), a hazardous waste landfill

may not be located in areas overlying a regional aquifcr unless the
regional aquifer is separated from the base of the containment structure by
a minimum of 10 feet of material with a hydraulic conductivity not greater
than 10'7 cm/sec or a thicker interval of more permeable material which
providcs equivalent or grcatcr retardation t pollution migration, The
Angie Lint I sltuwititgll
~
~~
Please )l't\\ltl’
and
~ fronL
‘
)
“'0
on no i ilfltit-otiqn to demonstrate this requirement.
Section II.A.5
4. Manyworfwthi: brings in the imnn‘

l‘oomrint Show some amount of smh~~ gnd/or shallow sang. ~ g area of HE promsed
Please note
30 'l‘AC § 335.204(c)(5) requires the landfill not be located in areas where
linifrll
soil units within 5 feet of the containment structure have a Unified Soil
Classification of GW, GP, GM, GC, SW, or SM, or a hydraulic
L“ Tr. an E22,
3‘“
ED Ext 4 at Ll (bcid text in original; undei.inc added).
DOCKET NO. 58248-1960
SOAI-I PROPOSAL FOR DECISION PAGE 67
TCEQ DOCKET NO. ZDls-OOIJ-IHW
conductivity greater than 10'5 [em/sec] unless 30 § 335.204(e)(5)(A) TAC

or (B) requirements are met. Please provide additional information and
discussion on how the requirements of 30 TAC § 335.204(e)(5) are met at
the selected site including any possible design changes to the proposed
landfill?“
Section Vl.A.4. —- Subsurface Soils Investigation Report
Section VI.A.A.a of the Part B Application Form requires a sufficient
~~
27.
number of borings to establish stratigraphy and to assess potential
on migration. The Geology Report submitted lacks
~~ ~
.
-
"hpfitqu. 1
~
, . >
to st poneLts
Pl asc provide a detailed evaluation to demonstrate that the cxi
~~
stratigraphy does not present potential pathways for pollution migration
and address the concerns nowtl “hove.342
In response to the 2014 NOD. Altair drilled seven additional borings and submitted the
data (2014 Data) to the ED. A second technical NOD (2015 NOD> was issued March 4, 2015.
in the 2015 NOD, Ms. Sehreier commented with respect to geology that the technical
demonstration provided by Altair “appears to meet” the requirements of Commission rule

investigation" to confirm
335.204(e)(4)(B) and (S), but stated that “there is room for additional
the presence of 10 feet of clay separating the Landfill from the aquifer “at regular intervals” and
was within allowable limits “at regular
to verify that hydraulic conductivity of the soil
intervals.”3“ She noted that samples with hydraulic conductivity values “greater than
clay unit correlated with a notation of either Catholic or calcareous and

10'7 ferrous
cm/see in the
nodules on the corresponding boring logs.”W Altair drilled seven borings in response to the
2015 NOD and submitted the data (201 5 Data) to the ED, As previously stated, the Final Drafi
~
Permit was issued on June 29, 2016.
3" ED EX. 4 at 2 (underline added for emphasis). See also Tr. at 1599-1500,
“2 131) EX. 4 at 5 (underline added for emphasis). See also Tr. at 1604.
“3 lil) EX. 5 at 1-21
3“ El) lix. 5 a! 1—2.
SOAH DOCKET No.582v1871960 PROPOSAL FOR DECISION PAGE 68
TCEQ DOCKET NO,2018—0013~1HW
Aligned Protestants made their additional horings within the Landfill footprint on
October 17-22, 2018, and completed geoteehnical testing of the soil samples in late October and
November 2018 (2018 Data).345 Aligned Protestants designed their soil boring program to
early
“collect samples from some of the non—tested areas [of the Site and Landfill] to fill those data
evaluate whether the soils were consistently low permeability (less than
gaps and to
1 x 10"7 em/sec) materials across the fontprint.”3‘6
As a general matter, Aligned Protestants argue that the 2018 Data shows “that there are
more permeable sections in Unit 1 than the earlier data would suggestfl"? They contend that
there is too much variability in the soil composition and hydraulic conductivity measures for
Altair to meet its burden of showing adequate aquifer protectionm Dr, Darling countered that
the 2018 Data is consistent with the earlier findings?” Ms. Schreier said she reviewed the
2018 Data and saw no need to revise the Final Drafi Permit as a result.350 Below, the ALJs
discuss the data included in the Application (through 2015) and then review the
2018 Data
before setting out their analysis, Caliehe is discussed separately in the section following that
analysis.
c. Hydraulic Conductivity and Grain Size Analyses, 19904015 Data
The Applieatien‘s Geology Report summarizes the scope of the measurements taken
from the 19905 Data, the 2014 Data, and the 2015 Data in Table G-4—l,35‘ A total of 109 soil
borings were made at the Site, 29 of which were within the Landfill footprint, Hydraulic
conductivity tests were performed on soil samples taken from 35 borings at the Site,
of which
"3 Aligned Protestants Supp. Ex, 1 atZ.

3" Aligned Protestants Supp, Ex 1 at 24
3‘7
Aligned (vieslams Supp. EX. 1 at 12. Aligned Protc HM" analysis
ul'me 20 8 Data was supported by Damior
‘
and U I
.’\.
~~~ Dermot Reply Briet'at 12-13;
.
LCRA
K111i h ieiul 9. (Fl‘lif agreed. See OI’lC inrlia] Brief :2! li.
~
3“ Aligned Protestants Supp. Ex. 1 at 12-13.
‘°
“3 Tr, at 1711—12.
35‘
Altair Ex, 2-2 at 001395.
SOAU DOCKFT N0. SKI-l 84960 PROPOSAL FOR DECISION PAGE 6‘!
TC”! DOCKET NO. 20l870013-HIW
14 borings were within the landfill footprint. A total of 73 hydraulic conductivity tests were
performed on sci] samples, of which 25 were For soil samples within the Landfill footprint
i. Altair
for the 19903 Data. 1)r. Darling stated thal the maximum hydraulic conductivity
measured at the Site was 4,9 x 10

5
cm/sec, and thc mininnim was 11 x 10‘“J cm/Sccxm The
geometric mean of the hydraulic conductivity measurements [at the entire Site) was
1.9x10‘gcmt‘scc, which Dr. Darling noted was less permeable than required by
353
Commission rule 335t204(e)(4)(13)
The 14 horings taken in 2014 and 2015 (seven in each year) were within or close to the
Landfill footprint. The maximum hydraulic conductivity obtained was 2.8 x 10’6 cm/scc. and the
minimum was 21 x lO'w tin/sec."5

4
The geometric mean of the hydraulic conductivity
ineacuremcnts was 12 x 10‘“ cm/sec. which Dr. Darling again tinted was less permeablc than the
standard required by Commission rule 3351204tc)(4)(13),355
Dr. Darling explaincd that Altair focused on mating the hydraulic cunductivity of day
layers in order to ascertain whcthcr they totaled at least 10 feet in thickness
of sufficiently
impermeable material, llc clarificd that a hydraulic conductivity test cannot be performed on
sand because it wiEl not hnld together as a 0012.356 The hydraulic conductivity cilia sand deposit
would have to be tested "in situ, meaning in the borehole.”35 N) such in situ tests were
conducted. Dix Darling noted that the sand layers are not a relevant focus of inquiry because
~
at 0039M»
at 003913.
‘55
AltrirL . 003914
"" 'l‘r.
at 6130-6 1 .
“'7
'Ir. at (:61.
50A]!DOCKET ND. 58248-1960 PROPOSAL FOR DECISION PAGE 70
TCEQ DOCKET NO. 2018-00134HW
“the sands are: encased in the clays and it‘s the low permeability of the clay that's the limiting
factor in the movement of fluids through the subsnrihce."m
As for the requirements of Commission rule 33S.204te)t5), the Geology Report states
that 29 soil borings (combining the 19905. 2014, and 20l5 Data) were made within the Landfill
footprint, 21 ot‘ which had no sand found within five feet 0 the containment structure” of the
t‘
eight boring: whetc some bond was found‘ “thorc did not appear to be any cViciCnce of lateral
connection between ad; cent borings.

“Lien
Thu surticial sands found were “undcrlain by
substantial thickness of low hydraulic conductivity Beaumont Clay prior to encountering the
Lissi: l-‘m-imitiorr”1 ~ Moreovetg much at“ the surfiuial sands were expected to hc rcmmcd as
pan of the Landfill construction.
The Geology Report notes that two horings outside the Landfill footprint “encountered
about 10 fact of sand within Unit 1” and that Vicinity (near borings SB-6 and A-iZ—é) was
inwstigatcd further in Ztll5. The 2015 Data included one boring (BIS—l) tlrilicd betwccn SIX-6
and thc Landfill footprint, which “encountered 4.5 feat of sand." Howcwr. boring BIS-1 was
not within flic Landfill footprint. Three additional innings near BlS-l (8154, 1315-5, and
815-6) were drilled insidc the Landfill footprint, and “lulonc of these boring cncountered sand
within Unit ["52 Drr Darling stated that. of 67 suil claxsifications made of sampics taken at tha
Sitct 58 were class rod as C! (icon clay) or CH (fat clay) and four were SC (clayey sand), In
"all cases where deposits at sand war: encountered, the deposits were thin= of limited lateral
extent, not CDiim‘CIdCi with other sands, and (in/3‘3“z Therefore, he concluded, the requirements
~
3" TL at {162
~-Z 00 lBKQV
~
35"
Altair I"\ ~ tit
-2 at 00 390.
l
2~2 at 001390.
in, 2-2 at 001389,
35"
Alizur Ex 3 at 003314,
~ 0A” DOCKET N()(582-l8~196tl PROPOSAL FOR DECISION PAGE 71
1 ( E0 DOCKET Ntl 2018—00134a
ut‘ Commission rule 335,204te)(5): concerning soil types and hydraulic conductivity values
within five that Mike containment structure, were also met.3M
in his pre-filed testimony. Dr, Darling characterized the "results of the 2014 and 2015
subsurface investigations [as being] entirely consistent with the . , . subsurface investigations
conducted in 1993 through l997 [thntl demonstrate permeability lower than the l0'7 cmlsee limit
on hydraulic eunduetixity in the [Handful footprint as required in i‘CEQ’s tnles[.l"3‘SS Given
that “all nfthe subsurface investigations between 1991 and 20l5 have yielded entirely consistent
needed."“‘l‘
results[,]"' he upined that “[flurtlter subsurface investigation is not
ii. Aligned Protestants
Aligned Protestants disputed Dr. l')arling’s conclusion that further investigation was
unnecessary Mr. Hedgcnxe stated in his pie-tiled testimony (filed August 3i, 2018) that for the
l9903 through ZUlS Data in the Applieatinn, the large minority of soil samples contained
“sand/silt content of 25 to over 40 percent.”

51‘
The presence of "significant sand content would
support the interpretation that the Unit 1 soils would be characterized as having moderate
permeability” rather than supporting Altair’s euntention that “the Unit [ soils in the vicinity of
the [Llandiill site are consistently low permeability clays from the surface down to the
7-5:»:
uppermost aquli‘ctlr]
Furthert Mr. llcdgenxe opined there was a “critical lack of gentcclmiczti data for many ol‘
the Unit I samples“ he ~‘56 nu hydraulic conductivity tests and/0r gratin size analys ~~were
performed For many samples; some closelyvloeated borings had very different tes results; and
then: were samples with high percentages (35% or more) 01"‘eonrsc sand material” than were not
~
3“ Altair "X 3 Eli. 003914t
“'
Altair lv 3 nt 003914
3""
Altai at 003915
w Aligned Pmtcstmns Ext 1 £tt006.
W Aligned I’mtesmnts EK 't

at 45
TCEQ DOCKET NO. 201 8-0013»HIW
subjected to hydraulic conductivity testing?” He noted that one historical horing (MR 96-7) had
a hydraulic conductivity test result in the 10‘5 cm/sec range, and borings placed immediately
around MK 96-7 in 2014 found hydraulic conductivity values “all the way from 10 to the
minus 10 to it) to the minus 6, so that was a 10,000 times different value in a very closely spaced
set ol‘boringsl“370
Mr, Hedgcoxe also pointed out that “6 of 25 samples tested for hydraulic conductivity
had values greater than 1 x10‘7 cm/scc” even though five of the six were classified as clay
samples (the sixth sample was not classified)”1 He explained that this was of concern because
even clay soils in Unit I exhibited considerable variability in hydraulic conductivity.
Furthermore, given that “hydraulic conductivity is the most critical parameter for siting the
landfill,” Mrr Hedgcoxe opined that having 23 hydraulic conductivity tests of clay samples and
clays.”372 The
only one of a sand sample resulted in a data set that was “clearly biased toward
“addition of data for sands and clayey sands of Unit I may Show much higher hydraulic
conductivitie ~
"
Mr. Hodgcoxe posited.373 He recommended that a field testing program to
collect additional hydraulic conductivity and grain size data was necessary.
iii. The El)
Ms. Schreicr confirmed that she wrote the portions of the 2014 NOD and 2015 NOD that
requested additional information from Altair regarding the geological considerations at the Site
and the Landfill.374 in the 2015 N01), Where she indicated there was “room for additional
investigation to confirm the interpretation in areas with limited data” on hydraulic conductivity,
~
she testified that she wanted more information for “[a]dditional comfort level
35"
Aligned Protestants Ex. 1 at 10,
. t . purely a gut
‘7"
Tr. at lilo-27.
37‘
Aligned Protestants Ex, I at ll,
3” Aligned Protestants Ex, 1 at 11-12, Of the 25 samples tested for hydraulic conductivity, 23 were classified as
clay, one as sand, and one was unclassified
373
Aligned Protestants Ex. l at 12‘
37‘ 1599—1601, 1603-03.

Tr. at
SOAH DOCKET NO 582-121—1960 PROPOSAL FOR DECISION PAGE 73
malte-mc-feel-hctter [reason]?375 She saw the same “room for improvement in terms of the
amount and sufficiency of the data” to confirm that a 10-foot barrier of clay separated the
Landfill and aquifer at “regular intervals.“376 The data Ms, Schreier received from Altair as a
result of the additional borings made in 2014 and 2015 “was consistent with what [she] expected
to see," which was “[s]imilar kinds of variability”377
Ms. Schreier was asked about statements made by Earl Lott, the Division Dircetor for the
Hazardous and Industrial Waste division (and the supervisor of Ms Schreicr and Mr. Venkat's
respective bosses).m in a deposition taken for this proceeding, Mr. Lott recalled a discussion
about the Site in which “the terminology used by [his] staff was it was more like Swiss cheese
and there were certain areas that i . . were suitable clays and other areas were more sandy.”’79
Msr Schreier said she had no recollection of making such comments to Mr. Lott and noted that
Mr. Venkat also testified he had not made the commentsm She explained that the only other
'l‘CEQ stall person “directly tasked” to review the Application was another geologist, who took
over the review of the case after the issuance of the 2015 NOD, when Ms. Sch’reier had a job title
change?“ While Msi Schrcicr could not say whether the other geologist would have made that
type of statement to Mrv Lott, she said she had no reason to doubt Mr. Lott’s recollection.3R2
Mr. Lott also remembered “some sand lenses that fingered through this property [the
Site]?583 Ms. Schreier said it was “plausible” that a lithography could exist where one could
“bore down through a surface clay[,] hit a finger [of] sand and back into a clay. and then [hit]
“5 Tr. at 1609.
37"
Tr. at 1612-13.
377 'l'r. at 1620‘
3“ Tr. at 1323, 1624,
37” 't‘r. at 1623.

3““
Tr. at 1625,
3“ Tr. at 1624.
3“ Tr. at 1625,
333 'l'r. at 1624'
SOAH DOCKET NO. 58248-1960 PROPOSAL FOR DECISION
TCIZQ DOCKET NO. 2018-00l34llw
another linger of sand helhrc lgcttitigl to whatever . . , exists below that,“:‘34 However, she said
she saw no evidence at the Landfill liiotprint of a “sand layer across [thel sitefl“ She added
that Mr. Lott is nut 21 geologist or licensed professional geosuicntist.m
11. Hydraulic Conducti ity and Grain Size Analyses. 2018 Data
As previously taterl, the ANS granted Aligned Protestants: motion for additional lCK‘llllg.
which was performed in October and November 2013. The sampling. which was attended by
ot‘two
Altair-is experts and rcprcscntativcs, was directed by Mr. Hedgcoxe. Sampling consistsd
rounds of borings, the first drilled using zg ~ L il't‘Cl‘pllsh drilling rig which uses a hydraulic rotary
hammer to insert a S-tbot long coring tube into the ground" and the second performed with a
“hollow-stem auger r ~ ""7
'l’lxc direct-push cores were logged and samples were “cut length-wise so that each patty
(Altttir and Aligntd Protestants) had an even and equal ‘samplc split’ of the core.“"‘53 These
samples were used for grain size analyses. The hollowstcm auger cures were left in thc *‘Shulliy
tubes“ in which they were colleclcd and later extruded and cut into samples for hydraulic
taking an
conductivity testing. with Aligned Protestants selecting a section ut‘thc core 21nd Altair
adjacent section either imtricdiately above or below Aligned Protestanls‘

1:
sample).5K9 A total of
11 horings wcrc made. all within «:lte Landfill footprint,
Aligned Pmlcstants sent their samples to 'l‘crracon Consultants, Inc. (‘l‘crracon‘l for
laboratory testing, whereas Altair sent its samples to 'l'Rl—l-lnvlrunmental, Incl {'l‘Rl). Both
panics received the results from bnth laboratories. and Dr. Darling and Mr. llcdgcoxc provided
“5 l’r. at l 763-66‘
1" Aligncd Protestants Supp, lix. I at 127.
Aligned Protestants Supp. Ex, 1 at l27.
3""
Aligned Frotcstauts Supp. lix, l at 138
SOAH DOCKET NO. 582-18-t9bt] PROPOSAL FOR DECISION PAGE 75
TCEQ DOCKET NO. 2018—00l37IHW
analyses and interpretation of the data in supplemental Lestimany discussed below

along with
Ms, Schreier‘: evaluation,
i. Aligned Protestants
In addition to supet'vismg the 2018 sampling, Mr. Hetigunxe examined the “borrow pit"
which an excavated area from which soils have been removed over the years for
~
at the Site, is
use as daily cover at the MSW Biennium The borrow pit i nsitle the eastern boundary“ at the
Landfill.m He studied the exposed sidewall of the borrow pit and characterized it as having “an
upper 310t of S to 12 feet” comprise/d ufsandy clays and clayey sands; n unlicltc zone under that
ranging from “less than one-font thick tn about two to three feet thick“: 1 “yredorninantly sttnd
and more coarse grained sand of [hit exposed

~
layer” below the caiichc‘. and finally “gr‘avels 11
on the floor or" the burrow pit excavation."3‘92 in general, the soil mm a clay/caliche l . ture to
“about [2 to l5 feet" lFClOW grountL alter which sand content increased; below approximately
gravels."-‘”
1'! to 18 leet, the soils are predominantly sands with increasing grain size, including
Based on the sidewall, Mr. Hedgcoxe commented that “cttnnrinons roots are present as
much as 10 tn 12 Feet through the upper clayey section of Unit

l" and the “upper soils have
abundant vertical cracks that appear to concentrate erosion,"3W in his experience, features such
as roots, vertical seatns‘ and cracks can provide “Vertical pathways that can link sand intervals
that might nthcrwise he isnlaicd,” In addition he said that the presence at such tbenurcs could
cause "the bulk, in situ hydraulic conductivity [to be} higher than 'alues reported from
laboratory tcstinvt ~ ~ 95
~
9v;
TL at 695
Aligned Protestants Sum), FA. 2 at 128‘
)9
Aligned Protestants Supp Ex. 1 at 128729»
39‘
Aligned Protestants Supp EN. 1 at l29.
3"“
Aligned Protestant“ Supp EA. 1 at litlv
'
Aligned Protestants Supp. ~,x, 13:130.
$0M! DOCKET NO‘ 5212—1194960 PROPOSAL FOR DECISION PAGE 76
TCEQ DOCKET NO. 20l8—0013-1HW
Mr llcdgcoxe compiled the data rc ~wud from TRl and ’l‘crtacon and made the
{allowing principal findings and observations:
~ The grain size analyses indicated “highly ariable" soil in linit I with sand ~
content ranges “from over 65% in some samples to less than 15% in others";
- Of the split
but Lherc were instances
samples,
~
“man~~~~~ 'howcci “gtmd'
’
~
~~
are the results are very ditfercnt ~ such as hm‘iugs
cmcnt“ between the labumtorics.
BlSQO and 1318~l)'.'. ’I‘crracon shuwetl sand content ofSO% at [its to 13 feet for
BIS—2O zuid at 13 la I367 feet for 818-07, whcrcas l‘Rl’s results for the same
samples had sand values of less than 35%;
o The hydraulic conductivity values obtained ranged from a maximum of

3.3 x 10'“ cm/scc to a minimum 0111 x 10'‘0 cut/sec;
v Smne the hydraulic conductivity values For two samples from t;

(it
and values “commonly
mnc core
trod by an;
~
were “sometimes very different“ overall the (lit
much as one to th 2 orders of magnitude," indicating the soils “should not be

referred to as ‘mnsrstanl ,
0ft
~ hm igs taken, seven were for conductivity and tive of
'
tc ~~~ "Lii‘xlUiiC
a c ll l
~
the n (met 71%) had vulues: inure rumble than 1 x 10" ctnxscc;
~
.. i
- the seven borings tested for hydraulic conductivity, a total of X9 individual

()I~
samples were tested and ninc of the 1‘) (over 47/0) had values more permeable
than 1 x 10" cm/s
- Combining the 3018 Data with the previous nnalyscs, there are 10 locations
within the Land till footprint that returned hydraulic conductivity values more
permeable than 1 x 10‘7 cm/‘scc‘w‘
'l‘ttking all of the available data into censidcration, Mr. Hedgcoxe pointcd out the hydraulic
conductivity data “are quite variable." He advised that the variability was "It
the “cil‘cct of soil features such as root traces, vertical scams and cracks, and c
~~
additiun to interlaycrs and pockets ot‘sands within the Unit l clayey soils,"307 lie opined that the
ml Protestants Supplh V l $133733.

3‘”
Aligned Protestants Supp. Ex, l at 135.
data “suggests there are locations within the [l,]andlill footprint where a consistent hydraulic
Unit [3’398
conductivity of 1 x 10'7 cm/sec or less is not present across
Mr. Hedgcoxe was asked why he only made 11 borings when the ALJ’s‘ order authorized
Aligned Protestants to make up to 20 borings. He pointed out that his time was limited because
the request was opposed hy Altair and Aligned Protestants had to wait for Lhe ALJs’ order; there
were several days of heavy rain that delayed the field testing; and he had to make a decision
balancing how many borings to make while still having enough time to obtain laboratory
analysis and then provide supplemental testimony before the hearing?” Asked why he did not
order Terracon to test Atterberg limits on the soil samples in addition to using sieves to
determine grain size, Mr. Hedgcoxe commented that he was interested in grain size becausc there
is a general correlation between grain size and hydraulic conductivity where higher grain size
materials generally have higher hydraulic conductivities.400 He ~

“
d not see the need to run
Atterbcrg limits in order to be able to understand whether or not the samples we were taking
were likely to meet the 1 times 10 to the minus 7 standard,”401
Altair challenged whether Mr, Hedgcoxe and Aligned Protestants were motivated by
confirmation bias, tie, a desire to reinforce a preconceived notion of the Landfill as unsuitable,
Dri Darling testified that the 2018 investigation “was not designed or executed in a way that
would scientifically characterizc the geology of the site [but instead| seemed to be an example of
continuation bias"402 Mr. Hedgcoxe rejected the assertion, stating that he would no more “go
looking for sand to test” than he would “go just looking for clay.”403 He said his goal was to call
attention to what he saw as deficiencies in the data. He stated, “first of all, there are sands in
Unit I, and, number two, of the testing that was conducted and the [hydraulic conductivity]
3"“
Aligned Protestants Supp. Ex. 1 at t36.
"9 Tri at “32-31

“’0
Tr. at 1081‘
‘0' '1‘!“ at 1084.
"’3
Altair Supp, Ex. 3-3 at 000008,
“3 Tr. at llOGi
TCEQ DOCKET NO. 2018—0013-[HW
values that were used to create the geometric mean in that table, [there was only] one value from
a sand.”‘“’“ Commenting on Dr, Darling’s conclusion that clays were the limiting factor and
therefore the hydraulic conductivity values of clay were most pertinent, Mr. Hedgcoxe said he
might agree if the clay is “unbroken by other features and/or sand lenscs” but that was not shown
to be the case at the Landfill405
Mr. Iledgcoxe explained that Aligned Protestants’ purpose in conducting the 2018
investigation was to “look in areas that had not been tested previously and determine
whether or
not sands were present, and if they were present, to test

them,“““" He testified that he could not
met the standard,” but concluded that “Applicant hasn‘t

say “that it [the Landfill! has or hasn’t
demonstrated that it has.” He added, “It’s not my goal or my burden to prove that it hasn’t,""‘77
Aligned Protestants’ witness James Weishuhn, RE, is a civil and environmental engineer
licensed in Texas, Oklahoma1 and Mississippi.“m He holds a bachelor’s degree in civil
engineering and a master’s degree in environmcntal engineering.4°9 He is certified to evaluate
and install onsire sewage facilities. and to work on hazardous waste operation sites,“0
Mr, Weishuhn is a long~time resident of Colorado County and has 20 years of experience
working in and around the county,“1 He testified that he is very familiar with “soil types and
conditions" in the area,“2
Mr, Weishuhn was hired by Todd Barten (whose testimony is discussed below) to
characterize soils found on Mr. Barton’s property located approximately 500 feet from Altair’s
‘0 Tr. at 1 104-05. Mr, Hedgcoxe‘s reference to a “table” is to Table (5—4-3 submitted in the Geology Report.
“‘5
Tr. at 1106-07.
“7
Tr.nt1122.
4°”
Tr at1134.
to 0841
Aligned Protestants Ex. 2 at
“"9
Aligned Protestants Ex. 2-1 at 096.
"m Aligned Protestants Ex, 2 at 084,
"'
Aligned Protestants Ex. 2 at 085; Tr, at 1165
u Aligned Protestants Ex. 2 at 085.
TCEQ DOCKET NO, 201870013—1HW
property.“ Five test pits were dug in areas “not previously mined for sand or gravel” on the
Batten property, and soils were observed from a depth of 12 feet, 9 inches to 20 feet below the
surface?” Mr. Weishuhn testified that he assessed the soil samples using “textural techniques,”
which he explained is an assessment of "the physical characteristics of the soil” such as whether
forms a hall, how much it will “ribbon” and whether it is “gritty, smooth, or neither gritty nor
it
smoothi”115 Textural techniques will altow an engineer to “get pretty close in the field" to
determining what type of soil is present, without a laboratory test.“6
In the five test pits, Mr. Weishuhn observed “Sands, Sandy Learns, Loamy Sands, Clay
Loam and Silts (caliehe when disturbed)?“7 He said it was consistent with his experience that
sand and gravel may be found "less than 15-feet below ground surface“ and that “soil depths and
types vary significantly over relatively short distances?"18 He cited the example of a public
water supply well that he installed “about two miles from the proposed landfill,” and noted that
gravel was present “at 10 feet below ground surface" at that location,419
ii. Altair
Although his pre-filed testimony deemed additional sampling (beyond the 2015 Data)
unnecessary, Dn Darling conceded that a section of the Landfill was “devoid of data" until the
“20l8 samples added a lot more data[.]"”'20 Earlier (19905) data lacked hydraulic conductivity
~
values= but Dr. Darling said the darn gap did not change his evaluation. He agreed, however, that
he was better able to analyze the Site and Landfill “after we collected the 2018 datar‘m'
"3 Aligned Protestants Ex. 2 at 086.
"1 Aligned Protestants Fix, 2 at 081

"5 Tr, at 1154-55,
"6 Tr. at 1155.
n Aligned Protestants Ex. 2 at 083.

"3 Aligned Protestants Ex. 2 at 089.
“9 Aligned Protestants Ex. 2 at 089,
‘23
Tr at 747.
“2
Tr, at 823‘
TCEQ DOCKET NO. 2018-0013~IHW
Dr. Darling described the TRI and Terracon data as consistent with the fact that the
Beaumont Formation soils are not homogeneous, meaning that hydraulic conductivity values
should be expected to be variable."22 He noted the data from both laboratories “indicate that the
H)“7 urn/sec range or higher were either in
small set of soil samples with a peimealiility in the
intervals 10 or were surrounded by intervals which tested for hydraulic conductivity

below feet,
“423
in the 10'R cm/sec range or even less permeable,
cross-examination. Dr. Darling was asked to focus on several specific

test results
On
showed discrepancies in both grain size
from TR] and Terracon. He concurred that the data
analysis results and hydraulic conductivity test values as follows:
The grain size one

~ s for boring l318~2 at 11.5 to 13 feet was reported by
~~~
'I‘errauun lu he Sl.l‘ ,.
'
try but by TRl to be 65.3% clay;424
The grain size analysis for boring 1318-2 at 16 to 175 feet was reported by
Terracon to be 57.3% sand but by TRI to be 40.7% sand;425
For BIS-2 at 16 to 17 feet, the hydraulic conductivity test result for Terraeon
was
was 2.5 x 10‘6 cm/sec, a difference of two orders of
412 x 10‘8 cm/sec and for ’l‘Rl
magnitude 926
~~~
for
For boring Bl8‘4 at 3,8 to 4.8 feet, the hydraulic. conductivity test
rt Iil
'l'errncon was 3.3 x 10'5 cm/see and for TRl was 4.9 x Ill" (tn/sec. a dil
nee of
two orders ot‘magnitudefl”
For boring Bl8-4 at 13.5 to 1415 feet, the hydraulic conduulh‘y test r
‘ 5
'l‘erracon was 4.4 x 10'7 sin/sec and for TRI was 6.9 x
10" cut/sec, a Llil‘t'c
~
two orders of mag,nitudc;‘”‘S and
92
Altair Supp. Ex. 33 at 000022
13
Altair Supp. Ex. 3-3 at 000024
m Tr. at 727.
m Tr, at 73 I,
425 ‘l‘r. 732—33.

at
427
Tr. at 734,
m Tr, at 7354
SOAH DOCKET NO. Studs-1960 PROPOSAL FOR DECISION PAGE 81
T(‘EQ DOCKET M). 20] 8410134t
- For liming B1844 at 3 to 4 feet. thc hydraulic conductivity test result for
'l‘crrnmn “as 1.2 x 10" Cm/scc and for Tm
was 6.4 x ll)” cm/sec. a dif‘l’crcncc of
three orders of magnitude,“9
Dr. Darling said then: new several reasons the data from Tcn‘dcon diverged from the ’l‘Rl
~
TRI performed Atterberg limits test»; to classify the soil samples in addition to grain
data. First.
Sectmd, some samples that

’
Size analyms using Sim/cs, while Tcn’acon only used the sieve
depths (for example, 16 to 17.5 fcct for

showed higher perccntages of sand were at at
boring 818%) where sand should be expected to increase.“l Another issue was that
Mr. lledgcoxc had the choice of how dcep to make the burings, and he terminated some horiugs
dcpths that did not answer the question of Whether additional clay would he
encountcretl
at
before reaching the aqnil'etnm For example: boring B1874 did not Show that a total 10 feet of
clay (with hydraulic conductivity no more than 1 x 10‘7 cut/sec) existed between the Landfill
~
structure and the aquifer, but the boring was terminated at 15 feet, where clay can be found
F
beneath Lhc Landfill for up to 20 25

’
to lei.
I‘m not exactly sure

And Finally. Dr. Darling said, “It’s just showing some variability and
u hat to attribute it to.“m He stressed that both ’l‘crmcnn and TM are reputable laboratories and
hc would not assign mm to either one, noting. “i cannot and will not point my fingcr at a lab
without having any more specific int‘onnation,“m As visual aids. Dr. Darling reprcscnted the
hydraulic conductivity vnlucs as a scatter plot and as a clot plotfi” He also generated at chart
comparing the central tendency calculations for hydraulic conductivity talues from the
m
m -
an
433
‘5‘
Tr. 21:739.
"‘ Tr at728
3—3i at UDOllllrS2. These Visual aids are discussed in Ms, gchmicr’n testimony. bclnw.
‘3‘”
Altai. c pp 1
SOAH DOCKET No.582-18vl960 PROPOSAL FOR DECISlON PAGE 81
Application data (through 2015) to the values obtained in the 2018 Data fer soil samples that
were all within the Landfill footprint“7
~ ~
~~~
~
m
Statistic TRI Terracon Application All
~ ,_
t
(mush
~ ~7
(2018) (2918) 1015)
.# ,,,,,, , ,,,,,
l,
63
i~
Ntimber attests 19 l‘)r ~ __
__
V ’_
~
172.10x 10"”
r _ ‘
10x10?“ L210); 10:”
~
Minimmrtt’c 2.19
~
i
~~~
_0 x10“
‘
2,80x lO'b 3.3(lx10”“_
i
Maxiinuttgcni ec) _
~
i
2.43 .‘(10‘7
~~ Vfgldge {tm
~
_
reomcme in 1.16 x __J.8l xii)"

)x 10*
u r
xioj’
grediamcmzsgc) .
7,
Dr. Darling pointed out that it‘thc average (arithmetic mean) hydraulic conductivity value for all
of the data (_2.4.'4x10‘7cm/scc) is divided by the geometric mean for all of the data
(1.81 x 10‘g Chi/sec), the result is a "factor of 11“” iii: explained that this means “the
arithmetic mean is 13 times greater than the geometric mean, which would indicate that Ithe
arithmetic mean] is tontrnlled entirely by the outliers in thc tail of the distributien,“4” That
reinfnrcccl his \ icw that the geometric mean was the appropriate measure of central tendency/“U
Dr. Dru-ling reiterated that. at the Altair site, the most important criterion in assessing
hydraulic etinduetivity was the presence nl‘clay. lle explainedr “water has to infiltrate through
the clay het‘urc it can reach the sand. It the clay is of sufficiently low permeability then little or
no water might reach the sand....[:;]() the characterization of the clay becomus very important
here?“ Because clay is the “dominant lithology“ at the Landfillx the geometric mean of the
~
hydraulic conductivity for ll“: clay la‘~ ~~rs was of most relevance. according tn Dr. Darling,m
"3"
Altair Supp.
(through 2015)" to
Ex ~ 3 at
~
clarit')
000022. The mlumn labeled "Geo~M
the time (hunt, and the year "2018" is
'1
added
Dr. Darling’
to the TRl and
~ ~ an is
‘I‘erracmi
renamed “Application
summits.
"" Tr. 31862.
"9 Tr. at 862.

“0 Tit m 860.
~
i“ Tr. ulA—IS.
w 'lr, £11776 ,".
SOAIIDOCKET ND. 58248-1960 PROPOSAL FOR DECISION PAGE 83
TCEQ DOCKET NO. 20|8~0013-IHW
If the primary lithology of a site was sand, Dr. Darling would calculate the geometric
mean of the hydraulic conductivity values for sand samples.M3 If the task was to “calculate
permeabilities of different lithologies,” Dr, Darling would “separate the lithologies into type
[sand or clay} and then calculate the geometric mcan|s] based upon those” hydraulic
conductivity values?“ To mix clay and sand hydraulic conductivity Values for a site with a
predominant lithology of clay would he “comparing apples to oranges,

93445
Assuming
hypothetically that a vertical conduit of sand could be found, that area

“has its own permeability,
units.”‘”"
and so you7d calculate the mean of that unit apart from the other
Mr. Graves confirmed that the geometric mean, as calculated based on the clay samples,
is the “representation that best describes the Beaumont Clay where we do not have a specific test
resultwl‘l7 He explained, “[w]here we have data, we use that data [and where] we do not have
data, we use a representation of the formation using the geometric mean . . . the places where we
do not have a measurement are represented by a geometric mean?” Mr, Graves remarked that
it is “completely impractical to test every inch of every boring, let alone [try] to explain what
happens in between the borings,”Mg
Regarding Mr. lledgcoxc’s hypothesis that tree roots and other features might create
undiscovered transmission corridors for pollution migration, Dr. Darling agreed that roots, when
present, might offer a conduit between layers of soilfl” He also agreed that huisache and
mesquite trees grow at the Site, and mesquite trees in particular “can send roots down to fairly
deep levels [to] scavenge water,””‘ However, he concurred with Mr, Graves’s testimony that
4‘"
Tr, at 776,
W ‘l’r. at776~77.
“5 Tr, at‘776
“5 Tr.at940,
“7 T . at 1999,
“3 'I‘r, at 2000,
“" Tr. at 2000,
“3 Tr. at [902.
‘5'
Tr. at 702.
SOAH DDCKFT N0. 582-123—1960 PROPOSAL FOR DECISION PAGE 84
TCEQ DDCKEI V().20l8-0013~IHW
there are few trees at the landfill to begin with (perhaps ihrcc to live n‘ees total),432 and the
construction process includes excavation and inspection to ensure any mots are removed/‘53
Dr. Darling granted that some sccondnry l'eatura-s such as fractures> fissures, and sand lcnscs
could present preferential migration pathways for liquids “eve-n if they‘re surrounded by low
permeability clay” but cmphasi7cd that such features had to be identified first,
and none had
been found at the Lattdlill,45‘
iii. Darmor
Damior presented the testimony ol‘ Todd Batten Mr. Barton has mare than 25 ycars of
cxpct‘icncc in sand and gravel mining and owns a group of companies collectively referral to as
“Darznor” in this 035:5” Darmor holds approximately ll,000 acres in Colorado County: of
which 3:600 acres composc tracts immediately adjacent to the Sim” Dnrmor has activc sand
and gravcl mining operations on approximately 1:200 acrcm with additional mining occurring
on
a 4,0()()~acrc tract currently leased for cattle ranching."57

‘l‘i‘aCts belonging to Dm'mor (lint arc
immediately to the southwest ol‘tltc Landfill were previously used for sand and gravel mining
and Vll‘. Batten said aggregate reserves remain on those tracts and will be mined in the future.“53
Mr. Barten‘s experience in the mining husincss in Colorado County has been that
“subsurface guology can Vary Widely in relatively small at'cas.""59 For example, the sail layers
found in two hove holcc dug within a single acre of land can differ witlcly.460 Mr. Barlcn said
therc be a layer of clay in the uppct soil strata and “I'Olucnsionally we nced to dig through
may
~
“3 Tttnt 19m (cl ~g aerial pnutogrdtth of Landfill at Allnir lit. 2 at 1059:.
‘” Tr. at 50027t
"5 Banner
‘5"
DartnorEx‘
~ 1 at It
at l,
‘57 Dannm-l'fix. i all

‘
Damn it lix. Hi 4,
‘59
Dettmor Ext l 316.
"
Damn»: Ex. l 316‘
50M] DOCKFT~ NO. 581-124-1960 PROPOSAL FOR DECISION PAGE 85
TCEQ DOCKET NO. 2018-tlfilJ-IHW
that clay in reach the sand, gravel and other aggregates beneath?“1 It is not uncummon for Clay
soils near the surface to have “pockets of sand“ 01- “pockets fur gravel and/hr larger reeks within
the clay layer, and gravel and rocks mixed with clay in DlilCl’ areas ol‘tlie clay layer.”4"7
iv. LCRA/OPIC
LCRA states it i5 "eunecrned’ with the proposed Landfill location: which is
“‘apprnxirnately l.5~2 miles from the Colorado River” and overlies geology that “15‘ by all
acemmis, 'ineensistem’ as it relates to the permeability of the soils beneath the proposed
landllll."‘“’3 The level el‘varintien in grain size analysis and hydraulic- eurrtluelivity wines—even
in split samples or adjacent samples from the two laboratories conducting the 2018 testingflis
~
troubling to LCRA because “it shows there are more permeable sections in Unit 1 than was
believed to he the "I’m MIRA asserts it is “not reasonable to eenelude that the Unit]
hydraulic conductivities are ‘consistently’ lower than the l x 10'7 cmlsee [standard] based on"
the 2018 Data and “the evidence provided during the hearing?“
retiw of on values taken five feet in l5 feet
~
OPIC focused its the boring log (1‘ a at
below the surface beenusel after construction the Landfill “will be as much 2w five feet below
grade. ‘l‘liereforei to assess if a minimum lU~fmt barrier of sufficiently impermeable soil
separated the Landfill and the aquifer, "it would be appropriate to look at information [min five
feet down to 15 feet as opposed to zero (gmund surface) to l0 f‘eet.""“ Within this range, OPIC
hydraulic conductivity values from either “old data“ (through 20l5) or “new data“ (the
~
:xsgerts,
2018 Data) do not satisfy the l x 10‘? urn/see standard unless a geometric mean is used.
~~
Darznol' ~x l m6,
"" Darmor Ex, lath.
'”
MIRA Reply Briefal 5.
“’5
LCRA Initial Hn’ct‘at m
““ LCRA lnitial Briell l0.
"1'
Ol’lC initial Uriefat ll,
“‘7 OPIC‘ Initial Bricf‘ul ll,
50A” DOCKET NO. 582-1849“) PROPOSAL FOR DECISION PAGE 86
TCEQ DOC KE'l‘ N0. 2018-0084}l
As discussed, OPlCI‘s position is that, where “there are concerns about hydraulic
conductivity ot‘thc site and the potential for lcachate to migrate . i . it is more appropriate and
protective [of aquifers] to consider outliers" rather than dampening their effect. The arithmetic
mean includes outliersi and Ol’lC points out that it is higher than the allowed penncabiiity
standard.“g Finally, Ol‘lC Concludes that whether the old dam or new data is considered, there is
insufficient soil (at most 25 feet) to intake an equivalency demonstration that the Landfill and the
aquifer an;- sepmoted by a thicker (greater than l0 feetl barrier of more permeable soilw”
v. The El)
Ms. Schrcier testified that the 2018 “boring data collected by the Aligned Protestants (lid
not change the recommendation“ that the Application should be approved.” She reviewed the
information the Application as well as the 2018 Data and “did not see extensive sands that
~
in
didn‘t have clay with them.”171 Variability not unusual” Unit and she did not find the soil
'
in
~
l
variability disqualified the Landfill.“2 She added that the data she reviewed “su gested that [the
Landfill] meets the requirement“ because she saw “at least ten feet of soil in the Areas that [she]
checked between the base 01‘ the containment structure and the top of the groundwater hearing
unitim‘ As for the presence ol'treez’plant roots in some photographs, Ms. Sehreicr commented
that the presence of fairly deep roots in the weathered borrow pit sidewall “does not nccessatily
indicate that there will be roots in situ {in} an unweathered

areai”‘"
Ms. Sulireicr was asked to review most of the same soil sample results from the
2018 Damn that Dr. Darling reviewed during his cross~examinaliom and she mnfinned that some
“‘8 ~~
01" initial Brief at 1243
~
I”;
OPIC initial Brief at 10.
"7’
T1 at iffifi‘
at 156067.
‘7‘
Tr. at 1569‘
DOCKET NO. 581-18496!)
SOAI-l PROPOSAL FOR DECISION PAGE 87
TCEQ DOCKET NO. 1018-00137HIW
of the 20l8 borings had results within the landfill footprint that did not satisfy the
l x 10‘7 ant/set; standard within the first 10 feet of the surface}? She also agreed wiLh
.Vlr. Hedgcoxe that five out of seven (over 7l%) cf the 2018 borings tested for hydraulic
10'” urn/500,476
conductivity had Values more perrncablc than 1 x
Looking at the dot plot and scatter plot generated by Dr. Darling to represent the range of
hydraulic conductivity value; Ms, Sclirsicr agreed that the data was “more prevalent“ in
representing the Landlill from the surface to
large number of samplcs had values

it
that failed to
depth ot‘up in 15
meet the l
Feet,
x
and that within that range, a
10'7 cut/sec standard ~~ She
admitted shc could nut rule out the data with higher permeability values as “suggesting the
potential for a conduit through the Unit l [sails] down 10 Kilt: Unit ll fornmljnn[.]
~
Ms. Schrcicr said it is part 01’ her job duties tn review and follow TCFQ technical
guidance whet-s appropriate.” She recognized that the guidance in TG-2 describes the Land
Rmnurces of Texas map (LRT map) as “a valuable resource to as st in determining if an area is
'l‘G-Z states that areas classtiicd by

favorable for industrial sulid wastc disposal.“"g” She agreed
the LR map l‘
as "poorly suitcd for use as a solid waste disposal Facility should bi‘ avoided.”m
~
More specifically. :hc curtiirmed that the [RT map classifies 740 square milcs out of Coloradu
County’s total area of 1,023 square miles as “Rechargc Sand" or "Secondary Aquifersf" both of
~‘significant problems likely" for solid waste
which are land type: that the map tics‘
,
disposalm liowcvct; Ms. Schreier pointed out thal the LR‘l map itsclil in a section titled
~
“Purposes of Land Resources Map,” states‘ “lajpplication ot‘the map to silo-specific problems is
“5 TL at l
"7’
Tr.r\ll713.
‘77
Tr, at E72324.
m Tr. at W79
~
"‘7
T2: at 1596,
‘2’ 'II.
Lti 594, citing Aligned l’iotmtam: lix [A3 at 035,
. 5934M,
SOAH DO('KI"T N0. 58248-1960 PROPOSAL FOR DECISION PAGE 88
TCEQ DOCKET NOV ZOLS~00134HW
not recormncndcd,”m Ms. Schroicr opined that the [RT map is “devclopcd at a regional scale,
would nave been smoothed out and be 1051 at this smilefm‘“:

and a lot ol‘iucalizcd detail
lr Schreicr suited that she did not rely “solely” on the geometric mean to tlctenninc that
mics regarding aquilbr protection, but she agreed that

the Landfill complied with (Tonnnisnoti
the HI) “accepted (lit; conclusions in the [Aippiicntiort“ demonstrating compliance with the
mean,“ Ms. Schmier acknowledged that if the arithmetic mean
standards by use oi‘a geometric
metric. the Landfill would not tncct site location standards.“
was considcrcd to be the governing
a. ALJS’ Analysis of Soil Data in RL‘CM‘d
In this section, the ADS :valutttc the record data and find the. following: (1) the
had already hccn twice by

Appiitztttion iilcd in 2013 was based solely on 19903 Data that ri‘jected
data within the Landfill footprint does not consistently show 10 {set of soil with
the FD: (ii) soil
x [0‘7 cniiscc between the hattom ol‘tlto Landfill and the

hydraulic conductivity no grcatcr than 1
top ofthe aqttiiill (iii) guidance in T62 indicates the Landfill is in an urea designated as poorly
ED’s finding that the site location requirements are met
suited for wastu disposal; (ii-")the
manner which Altair applictl the geometric

conflicts with the evidentiary record: and (v) the in
qualitics of clay to areas

moan to the 5011 data improperly attributes the hydraulic conductivity
within the Landfill footprint that are insufficiently characterized,
i. Only Historical Data (Already Deemed Inadequate by the El)

in 19905) was Used for the 2013 Application
The Allis note that the 19905 Dam was the sole inlbrmnlion used by Altair in the
Application as originally filed That same thin was the basis of the
ED‘s decisions in the 19903
“3 ‘lr
~~
~~
at i'lfiti‘
Art
. m 1766.
"“ it at 872.
W 'l'r, at 1573.
SOAlIDOCKET NO. 58248—1960 PROPOSAL FOR DECISION PAGE 89
TCEQ DOCKET NDt 2018-0013-1HW
to reject applications filed by 'l'rieil and Laidlaw because of problems such as “relatively high
precipitation with shallow groundwater and extensive sand and gravel form' ons”; location in a
three-county area “where large volumes of fine to coarse sand and gravel are mined"; the
“absence of at five of uniform clay, with a hydraulic conductivity of x 10'7 cubic

(5) feet
l
least
feet per second (efs) or less, separating the proposed cell and the lower aquifers and extending
throughout the unit"; and other “geological and locational drawbacks."
At the hearing, Altair distinguished the earlier NOD letters (to Tricil and Laidlaw)
because the associated permit application (No. 39093) appears to relate to the southem portion of
the Site (where the MSW facility is located) rather than the northern portion where the Landfill is
proposed to be locatedm However: that argument is undercut by the fact that the same data
relied upon hy Trieil and Laidlaw was the initial basis for this Application. Also, while Altair
differentiated between the geologic attributes of the Landfill and the broader Site, the Geology
Report states:
While the strictest interpretation of the location standard is to usc only data from
within the proposed landfill footprint as outlined in the above bullet points, it is
very important to Male the following site-wide characteristics of the Beaumont
Clay unit soil:
0 Considering all 73 hydraulic conductivity tests per/brmed on Beaumont

Clay unit soil size-wide, lhe median and mean hydraulic Conductivity
values are very similar to the Values ol'just the subset of data from within
the proposed landfill footprint (indicative afaverall consistency across the
site),
0 The lowest measured hydraulic conductivity anywhere on the site is
located beneath the proposed landfill footprint 7 with a value of

2‘1 x 10'10 cmlseci
'l‘hus, Altair emphasized the consistency of hydraulic conductivity values across the Site
while at the same time asserting that the Landfill has less permeable soil than the Site in
m The ALJs note that there scant evidence in the record concerning permit application No. 39096, which related
is
'No permit issued and no construction was undertaken
to a proposed disposal area in the northern half of the Site,
associated with permit No
39096, See Altair EX. 4-4 at 004939.
general.““ The ALJs find it concerning that a third permit application was submitted based only
on the same evidence that had been rejected twice before. The “geological and locational
drawbacks” raised by the Tricil and Laidlaw NODs were unchanged, but the Application as
initially tiled lacked a satisfactory explanation of why the third permit request should succeed.
ii. Soil Data within the Landfill Does Not Consistently Show
10 Feet “Separation by Sufficiently Impermeable Soil
Before discussing the specific soil data, the ANS note three items they do not dwell on in
this PFD. First, the Al do not give weight to statements from Mr. Lott (regarding the “Swiss
cheese” character and presence of “fingers” of sand at the Site), The provenanee and reliability
of such statements was not established in the record. Second, the ALJs do not find that Altair
attempted to make an “equivalency demonstration” to show that a greater thickness of more
permeable soil underlies the Landfill in the manner described in the Preamble (which gives the
example of 50 feet of soil with a hydraulic conductivity ofS x [0’7 em!sec).“39 Finally, the ADS
were unpersuaded by the available evidence that there are sufficient tree or plant roots at the
Landfill to present potential transmission conduits, or that actual fractures and fissures were
found at the Landfill other than at the sidewall, which is weathered. Therefore, the ALJs do not
discuss those possibilities further.
The ALJS also do not include lengthy discussion here of the requirement in Commission
rule 335.204(e)(5) that soils within five feet of the containment structure have neither the
prescribed soil classifications, nor a hydraulic conductivity in excess of] x 10‘5 cm/sec, There is
no evidence that smls that were tested and are from borings within five feet ol'thc containment
structure had hydraulic conductivity values that exceed the l x 10‘5 cm/sec stimdard.490 The
"5‘
Altair Ere ~ «2, Att. (3 at 001406 (Table G-4-5).
“9 The F0 stand in closing arguments that Altair was not attempting an equivalency demonstration. ED Reply
Brief at 6 (noting that the “Application is not attempting to demonstrate that there is a thicker interval of higher
permeability mils under § 335.204(c)(4)(B)"), However, Ms, Fichreier made reference during heir testimony to
considering Altair‘s data to he an equivalency demonstration, Tr. at 1716-17, It appears she meant that die use ofa
geometric mean could be considered a demonstration of equivalent protection, an argument that is addressed below.
“‘7
See Altair Supp. Ex. 3-3i at 000l81.
SUM! DOCKET ND. 58248-1960 PROPOSAL FOR DECISION PAGE 91
TCEQ DOCKET NO. 2018-0013»IHW
ALJs also do not see evidence that soils with the classifications proscribed by the rule were
present in the immediate five-foot radius of the containment structure However, the general
inadequacy of the soil data and the variability of the soils analyLed lead the ALJs to find the
Application fails to meet the standard in Commission rule 333.204(e)(4)(B), of showing at least
10 feet of soil hydraulic conductivity no greater than 1 X 10'7 cm/sec separate the
containment structure from the aquifer in Unit IL For the same reasons, the soil characterization
is inadequate as presented in the Application for the ADS to find compliance with Commission
rulc 335,204(e)(5). The ALls recommend that the Commission deny the Application on the
hasis of both subsections (c)(4)(B) and (5).
The soils at the Landfill include a mix of clay and sand as well as a caliche layer
(discussed in a separate section below) Dr. Darling’s chart summarizing the hydraulic
conductivities at the Landfill shows the three sets of data (from TRI, 'l‘crracon, and the
Application up to 20l5) contain maximum values well above the standard in
Commission rule 335.204(e)(4)(13) of 1x10‘7cm/sec (the highest value, from Terracon, is
3.30 x 10’“ cm/sec). All three data sets indicate average hydraulic conductivity values above the
standard in the rule The average of the three data sets together (2.43 x 10'7 cm/sec) is also more
permeable than the rule permits, Only if the geometric mean or median are accepted do the
values show a central tendency that satisfies the rule. As previously discussed, the central
tendency is not a concept historically used by the ED or TCEQ, and the intent of the Commission
site location rules is to screen out unsuitable sites, so data smoothing or normalizing is contrary
to the required investigation
Clay is estimated to he found at the Landfill at depths of 20 to 25 feet, and Altair argued
that it established at least 10 aggregate feet of low-permeability clay consistently within the
Landfill footprint, excluding intervals with excess sand content or hydraulic conductivity
exceeding the standard, However, the evidence does not support Allah’s position that clay soil
at the Landfill is reliably impermeable. The Application data (through 2015) included live out of
25 samples tested for hydraulic conductivity that were classified as clay but still returned values
SOAH DOCKET N01 58243-1960 PROPOSAL FOR DECISION PAGE 92
in excess of l x 10’7 eon/sec.491 The majority of soil samples taken through 2015 had sand or silt
content of 25% to 40%, indicating it is reasonable to expect greater permeability than if the
Landfill was constituted by clay soil with low sand. content.‘
A historical boring (MRA-96-7) registered hydraulic conductivity of 1.6 x 10‘5 cm/sec,
although the boring was classified as clay soil for almost its entire 22-foot length,"92 Borings
drilled in 2014 very close to MIRA-964 had three hydraulic conductivity values that varied by a
factor of 10,000 (boring 1314—6 with 115 x 10'” cmt'scc at cm 8 feet, and boring 1314-7 with
2.1 x 10"D cm/sec at 6 to 8 feet and 2.8 x 10’“ cm/sec at 14 to 16 feet). All of the 2014 samples
were classified as clay) and while two met the standard, one did not. The “Beaumont Clay”
terminology used by Altair thus gives an incorrect impression that where clay is found, the
l x 10'7 cm/sec standard is met»
For the 2018 Data, grain sizes calculated by 'l'erracon and TM diverged considerably for
several samples, even though the samples were from evenly split cores. Hydraulic conductivity
tests for adjacent core samples differed by several orders of magnitude, And, Dr. Darling’s
explanations are unpersuasivc. He attributed grain size differences to the fact that
'l‘RI tested
Atterberg limits while Terracon did not. However7 the addition of Atterberg limits data does not
clarify why evenly-split cores analyzed using the same standard technology (sieves) would have
such different grain size results Dri Darling said some samples with hydraulic conductivity in
excess of the standard came from borings that terminated “early” (9 g, at 15 feet) and did not
show whether more cla '

existed before the aquifer was reached. Yet, 16 feet below the surface
is where Dr‘ Darling stated he expected to see more sand content, which is tlic explanation he
gave for why samples taken at that deplh reflected higher hydraulic conductivity values,
Dr, Darling refused to criticize either TRI or Terracon, stating they are both reputable
~
laboratories and he had no reason to doubt their work The ALJs find there is a simpler
“W As noted by ML
l-ledgcoxe, a sixth sample of the 25 also had a value in excess of 1 x 10'7 cmlsec, but it did not
have a soil classification assigned to it
“7'
Aligned Protestants Ex. 14 at 062.
~
SO \H [DOCKET fulfil-184960
AQ 110C KET N0. 2018-0013711t
PROPOSAL FOR DECISION PAGE 9}
explanation for tho divcrgence in values, even from split samples tukcu from it Single boring A5
ML licdgooxc noted, both labs can bc correct because their results are consistent with the soil
Simply being too variable to chai'ucteri7e with uniformit) across the 66—3c span ni‘the Landfill.
That rt sorting is also consistent with the findings of Mr, V‘v’s'shuhu at the test pits he dug on
Mr Barton’s property, and with Mr. Barron’s uxpcricnoc mining grave] and sand at pmpcflies
immediately adjacent to the $itc. The record evidence shows that the Landfill is composed of
highly variable soils, and the Aids do not see sufficient evidence that the Landfill meet the
minimum 1041301 separation of adequately protective soil. This is true whether the soils are
murmured beginning at ground level or beginning at five fcct bclow the suri‘acefgii
This soil complexity and variability loads thc ALJs to also find that the Application does
not satisfy the requirements of Commission rule 33520.1 That rulc states that the Commission
"may not issue a permit for a new hazardous waste management facility“ unless it finds that. the
site, "when evaluated in light of proposed design, construction, and operational fcaturcs,
reasonably minimizes possible contamination of surface water and groundwater," In evaluating
a potential sitc‘ the Commission is to consider factors including "soil conditions such as
stratigraphic profile and complexity, hydraulic conductivity of strata, and separation distance
from the facility to the aquifer and points of discharge to sufioce watch“ 'lho Landfill is a site
with considerable stratigraphic complexity and a range of hydraulic conductivity valuos. The
evidence does not satisfy the requirement of showing adequate soil is present between the
Landfill and the aquifer to protect the aquifer; therefore~ the ADS determine that Altair has not
shown the proposed landfill reasonably minimizes: possible contamination of surface tlL’l‘ and
groundwater as required b) Commission rule 335.203.
~
points ufthe Lzmdiill while designing tltc clcta ~
note that VAL Graves testified he took into account “timber in feet at clay existed below various
e Aluls
s of the conmimncm units.
consistcntiy live that below the aurliuc at all elevations. depending on 1hr:
llc said the Landfill wvll not be
undcrlying soil thiskncsr. Tr at l88979l
iii, The Guidance in TG—Z Indicates the Landfill Area is Poorly

Suited for Waste Disposal
TCEQ’s guidance document, TG-Z, provides another source of data about the Site that
supports the ALJs’ finding that the Landfill soils have not been shown to be adequately
protective of the aquifer in Unit II.
Three elements of the guidance in TG»2 are particularly pertinent.“ First, TG-2 states
that areas with certain features described by the LRT map are poorly suited to solid waste
disposal. Second, 'l‘G-Z promotes the selection of sites with homogeneous, massive, and nearly
impermeable clay soils that provide a “large vertical separation” from an aquifer. Finally, TG-2
concludes that areas with "stratigraphic complexities" will require “a significantly greater degree
of subsurface investigation.” The Landfill could be deemed inappropriate under any of these
elements, which is troubling in light of the highly variable soil data already discussed.
In closing arguments, the ED asserts that no “expert in this proceeding cited |the LR'J'
map and Bureau of Economic Geology (850)] publications to characterize the geology for the
specific location of the proposed landfill and the Aligned Protestants did not even offer it into
evidence.““’5 The ED is accurate in stating that the MU" map and BEG pamphlet consulted
during Ms. Sehxeier’s cross-examination were not offered into evidence. However,
’l‘G—Z, which
cites the LR'l‘ map, is unquestionably in evidence. And, Ms. Sehreier testified that it is part of
her job duties to follow TCEQ technical guidance where appropriate.
Ms. Sehreier is correct that the LRT map states it is not appropriate for “site-specific
problems.” At the same time, 'l‘G—Z supports the use of the LRT map as a screening tool, TG—Z
indicates that the 70 land resource unit categories in the LRT map should be “studied to narrow
candidate land tracts to those that have a higher probability of suitability for waste disposal when
~
fully investigated.” The guidance cautions that areas designated by the LR’l‘ map as “poorly
49" A fourth clement ol‘TvZ, pertaining to Caliche, is discussed separately below

“1’
ED Replyliriefat 8.
SOAH DOCKET Not 5212-15-1 960 PROPOSAL FOR DECISION PAGE 95
“avoided,” if the land area is

suited for use as a solid waste disposal facility“ should be
designated as poorly suited, “detailed site-specific investigation" is needed to document the
“suitability of the area for the proposed facility,” Altair offers the Geology Report as that
detailed site-specific investigation
The bulk of Colorado County is designated as land resource units that are poorly suited
for the proposed use, 'l

he LRT map classifies 740 square miles out of Colorado County‘s total
area of 1,023 square miles as “Recharge Sand" or “Secondary Aquifers," land types that
the map
designates “significant problems likely" for solid waste disposal, Given the high variability
of
soils at the Landfill> as discussed above, the Geology Report is not a satisfactorily detailed
site-specific investigation for purposes of the guidance in TG-Qi
TG-2 states that “preferred locations for industrial solid waste landfills” are sites with
“[h]omogeneous, massive, and nearly impermeable clay and shale beds that provide a large
'l‘G-Z recognizes
vertical separation between the base of the landfill and the uppermost aquifer.“
that “[s]cams, lenses, or thin beds of sand or silt that extend for only a short distance and are
migration"
surrounded by clay will often not significantly increase the potential for waste
Nonetheless, as the “continuity, thickness, or permeability of a sand or silt tuiit increases, there is
correspondingly less assurance that waste migration will be sufficiently restricted."
’l'he soils at the Landfill are not homogeneous days. The clay formation is not
“massive.”~ The hydraulic conductivity values are highly variable, and even some values for clay
samples fail to meet the lx 10’7 cm/scc standard At most, there are 20 to 25 feet of soil
between the Landfill and the aquifer. Of those 20 to 25 feet, if soils with higher hydraulic
conductivity values are excluded, there are points of separation between the Landfill
and the
aquifer that may not contain 10 feet of soil meeting the 1 x 10'7 cm/see standard. There is no
“large vertical separation” to speak of.
As discussed above, the ALJs find the soils at the Landfill and the Site to have significant
variability and a range of hydraulic conductivity values. TG-2 warns that identification of
SOAH DOCKET not 58248—1960 PROPOSAL FOR DECISION PAGE 96
TCEQ DOCKET M). 20] H-lllHS-lHW
pathways for pollutant migration will bc more difficult in area: with stratigraphic complexities
such as “nonuniform beds that pinch out, vary significantly in thickncss: coalesce, or grade into
other units." hstablishing that such areas arc suitable will require a “significantly greater degree
of subsurface investigation” and “Iclonsequently, subsurface im estigation in these areas will

rctlui re greater expenditures,"
It is useful to look at the example of the US. Ecology facility in Rohstowr Texas, that
Dr. Darling said was similar to the proposed Landfill because both are in the Beaumont
Formation. both have an upper stratum of clay with "thin sand or clayey sand lenses“ occurring
locally, and laboratory testing for samples of the clay at Robstowu yielded vertical hydraulic
conductivities ranging from 1‘3 x 10"5 cm/see to 1.3 x 10'7 cut/see. Dr. Darling acknowledged
that it is unknown (from the record in this case) the depth at which US, Ecology obtained the
outlier value of 1.3 x 10‘7 ant/see More importantly, the Robstown site had laterally continuous
clay from ground surface to about 30 feet below grade and List Ecology made a total of
270 borings to demonetrme the site suitability. far more than were performed an Altair, Clearlyi
US. Ecology engaged in a more significant! expenditure to make its demonstration,
For these reasons. the ALJS consider the guidance in 'l‘Cv—Z to be another point of
information that adds to the overall portrait ofthe I .at‘ltiflii as an area with significant, unresolved
geologic drawbacks for use as a hazardous waste disposal facility.
iv. The ED's Finding that Site Location Requirements are Met
C onflicts with the Evidentinry Record
This case appears to be a matter of HTSE impression insofar as no other application for kt
new hazardous waste landfill permit could be identified by any witness as relying on a geometric
mean to satisfy site location standards that heightens the need to understand why the ED found
it acceptable in this use. However, the review and acceptance of the Application by the ED
tloes not appear to the ALIS to have meaningfully resolved the site location is, es raised in the
19905 or in the 2014 and 2015 NODst

DOCKET Nolan—184960
SOAI—l PROPOSAL FOR DECISION PAGE 97
TCEQ DOCKET NO 201870013-IHW
Notably the 20M NOD requested “in—situ hydraulic conductivity data (both laterally and
vertically) from within Geologic Unit I beneath the footprint of the proposed landfill locatinnH”
Ms. Schreier also requested that Altair provide inlbrmation sufficient to address hot concern that
vertical conductivity wa~ “highly ~Variable acr ~‘5 the proposed [Landfill] facility“ She stated
that the 1990s Data lacked “sufficient data for the Nonh and Central portion of the proposed
landfill to confirm that the site conceptual model tits the actual conditiol'is ofthat area,”
No in situ hydraulic conductivuy testing was pertotmed in t‘usponsc to the 2014 NOD.
Ilowcvcr, Ms, Sclu'eim‘ concluded based on the 2014 Data that was submitted= that the Landfill
location "appears to meet the requirements" ol‘ Commission rule 3352046304) and (0X5). 1n the
2015 NOD. she noted “room for additional investigation" to confirm hydraulic conductivity
values “at regular intervals” within the Landfill, Slit: also reiterated in that letter that there was
“minimal data currently available from the northern portion of the proposed landfill and the area
immediately adincent" where “shallow sand and gravel” had been found. The ZOlS Data
sccmingly gave Ms. Sclu'cier the answers she sought. She stated in her profiled testimony that
Aitair’s responses to the NODs "may not have included the exact information requested, but they
did provide information and explanations responding to the underlying concerns?”
It is unclear to the ALJs how the 2014 Data satisfied Ms. Schreior’s concerns or how the
2015 Data provided the “additional comfort level“ she sought, Ms. Suhrctcr opined that the
Application demonstrated compliance with Commission rule 335t204te)t4i and (5) “based on the
data and conclusions provided by the geologist oi‘record in the Application."”7 It appears that
Ms. Schrcicr was persuaded by Dr. Darling’s position that “a geometric mean is appropriate to
use for lognonnal data sets" However, she said she could "not coherently" define a “lognon‘nal
why the geometric mean was appropriate to use the goal to identi ~
~
is
data set“ or exiilain if ‘~
outliers rather than dampen their effects
~ l3 at it)
sati’MS.
SOAII DOCKET NO. 58248-1960 PROPOSAL FOR DECISION PAGE 98
TCEQ DOCKET NO. 2018~00l3-IHW
Ms. Schreier accepted that there were “some areas within the proposed landfill footprint
that do not have boring logs or hydraulic conductivity data.” However= she discounted
Mr. lledgcoxe‘s questions about the robustness of Altair’s data by stating that Mr. Hedgcoxc
“did not present his own measurement of hydraulic conductivity from the site” and “instead
provides a critique of the applicantis geology repot’trflgg This analysis assigns to Mr, Hedgcoxc
a burden that he does not bear, as Ms. Schreier acknowledged at the hearing”?
Reviewing the 2018 Data during cross-examination. Ms. Schreier agreed that the totality
of the data establishes a large number of hydraulic conductivity values within 15 feet of the
surface of the Landfill that do not meet the 1 x 10’7 cm/sec standard, In fact, 4 % of the 2018
samples did not meet the standard. Ms. Schreier admitted she could not rule out the possibility
ole. conduit from the Unit I soils to the aquifer in Unit ll based on the data
The ALJs do not find sufficient basis or reasoning to support the EIJ’s finding that
concerns raised in the four NODS in evidence (Tricil, Laidlaw, 20M, and 2015) were resolved
and that the Application meets site location standards for the Landfill. The ALJs’ own review of
the evidence finds it inadequate to make that finding.
v. The Geometric Mcan as Applied hy Altair Improperly Skcws

the Data
Given the soil variability at the Site and Landfill, the geometric mean is an inappropriate
tool to use because it excludes areas of higher permeability that could be of concern Altair
brings a second level of “flattening” er “normalizing” to the data through the manner in which it
calculated the geometric mean of its hydraulic conductivity data, because it considered only
values from clay samples,
"‘1
~
ED x. 13 at 291
‘9”
Tr, at 1675 (stating that an “opposing geologist has only the burden that they take upon themselves?)
SHAH DOCKET N0. 581484960 PROPOSAL FOR DECISION PAGE 99
TCEQ DOCKET No.201370013411w
l'his means that (l) hydraulic conductivity values for soils that have been tested and
characterized as sand are excluded from the geomeLrie mean calculation) and t2) soils that have
never been tested are presumed to he (lay because all untested points in the Landfill footprint are
as 'gncd the genitietric mean calculated for clay samples. This results in a double—exclusion of
any data variations that do not meet the hydraulic conductivity standard in
Commission rules.
While Aligned Protestants, Dermot, LC RA, and OPlC raise serious concerns about the
masking effects of the geometric mean. the ED and Altair simply critique the 2018 Data as
lnlCillSiVC, The ED explains in closing argument that the 2018 Data “cannot confirm or
disprove the presence of tl e ten—font low permeability barrier" required by Commission

ruicsfoo
l‘lte ED also notes that Commission rule 335,404(e)(4l(B) “does not address how a single talus
for hydraulic conductivity is to be determined for the area“ under a proposed landlill‘ thereby
alluwing an applicant to use a geometric mean. Altair criticizes Mr, Hedgcoxe’s complaints
ubuul the Application data m “ringling] hollow in light of his opportunities to address his
concerns" in the 2018 soil boring progrzmi‘ “especially since he chose to only conduct 1 l of the
20 soil hotings he was authorized to conductf’W Altair also describcs Mr, iicdgcoxe"s ZOlS
borings as designed to “identify and target discreet lateral intervals of soil for funher sampling
and testing rather than to scientifically characterize the geology of the soil?“
There are two issues with these criticisms, First, it is not Aligned Protestants” burden (or
that nt‘ Dal-moi“. LCKA, or ()l’lC) to conclusively prove that the Landfill location is disqualified.
It is Altair‘s burden of proof to show affirmatively that the soils meet the location standards.
Aligned Protestants hu «3, however, raised important questinn: about the reliability of the dam as
Viewed through the lens of a geometric mean, which distorts the variable composition and range
ofhydraulie conductivity Values at the Landfillt
~
5'“
D
Altair ~
Reply Brief at
h" " l
7.
Briel'zzt 24.
5‘”
Altair Initial Uriefm 36.
TCEQ DOCKET NO. 1018-0DIJ—IIIW
Second. the point of Commission rule 33S.204(e)(4)(B) is to disqualify sites as
insufficiently protective of an underlying aquifer, making Mn Hedgcoxe’s approach of looking
for outliers more consonant with the rule than the muffling effect of a geometric mean. And,
while the rule does not specify how “a single value” is to be determined, the ALIS do not find
that establishing a Single hydraulic conductivity value is required7 it is necessary only to show
that the maximum conductivity is within the prescribed limit of i x 10‘7 em/sec. The use of the
geometric mean to assume that all untested soil is clay is, again, contrary to the aquifer
protection goals of the rule.
4. Characterization of Caliche at Site and Landfill
The ALJs discuss the issue of caliche at the Site and the Landfill as a separate topic due
to its prominence in the patties’ arguments. Hydraulic conductivity values were not established
{or callehc zones; thus, caliche soil data was excluded from the geometric mean calculation of
hydraulic conductivity discussed above. The parties disputed whether calichc found at the Site is
naturally impermeable in its undisturbed state. After setting forth the parties‘ evidence and
positions, the ALJs find that the record contains insufficient evidence to make an assessment
concerning whether the caliche disqualifics the Landfill under Commission site location rules,
a. Altair
Caliche is a “chemical precipitate” that forms in situ as “calcium carbonate nodules that
coalesce around the sand grains in which it‘s growing."503 In the case of the Landfill, the caliche
"grouped more in a clay material” rather than sandiSIM Dr. Darling characterized the caliche as
being particularly noticeable in horizontal beds at approximately 14 to 18 feet below the surface
~
of the Landfill.”5 U ndisturbed caliche beds “represent very iow in-situ hydraulic conductivity”
in Dearling’s opinion, “since the caliche is calcium carbonate that has precipitated and
59’
Tr, at 664,
5‘“
Tr. at 664.
“‘5
AllairEx. 2~2, Att G a1001387.
SOAH DOCKET No.582-18~1960 PROPOSAL FOR DECISION PAGE 101
TCEQ DOCKET NO. 2(ll8‘il013—IHW
cemented within the pore space 01' the Beaumont Clay Soil?“ He stated that ualiche zones
UbSUI‘VCLi at the landfill “were particularly dry, hard, and nonporous."
caliche is exposed “to the atmospheric conditions of weathering and

runnt‘i" as
Where
seen on the sidewall of the burrow pit. it will “desiccate and crack" Dru Darling noted.5m Even
then, the burrow pit Shows “ledges” of catichc, indicating that the crtliehc was more resistant to
erosion than the clay in which it was embedded: the cztliche remained behind while there was
“some recession nfihc clayum‘m Dr. Darling cautioned that the visual appearance of the “deeply
weathered“ caliche on the borrow pit sidewall shuuld not be taken to be representative ofcaliche
within the L21n<ifill§”" He said it seemed "very unlikely" that undisturbed caliche at the Landfill
that is “encased in clay w lean clay primarily” would desiccatem
When it is ‘digtttrbcd by excavation. the caliche material tends IO pulverizc and fracture
into fragments or powdtzr."5“ Dix Darling explained that, because of this fragility, calichc is
very dil'l'tcul: to collect as an intact cote sample in a Shelby tube. The imertion ofthc Shelby
tube itself can cause the calichc in fracture. and men if an intact core sample is c‘itrncled, the
caliche core may fracture during transport to the laboratory fur testing.m A laboratory test of a
caliclte sample is likely to Show a high hydraulic Conductivity Villuc because the test is being
performed on “iritcturcd calichc."5” Even in situ testing of the wlichc “is tough because you‘re
going to have to drill into itf’ Dr. Darling noted.5H He was asked to review the hydraulic
conductivity value 017.8 x it“ cut/sec obtained {or boring 1314-7 at l4 ll) l6 feet in depth, which
~
~ Altair FA. 2-2, Alt. G at (101387.
’l‘r
M 663.
5“ Tr at 793.
5“ Tr 21l79ii
7’3
T131663.
5” Altair Ex, 2%, Art. G at 00i387
5’3
Tr, at 663.
5” Tr at 71 ll
5“ Tr. at 792.
TCEQ DOCKET NO. Zfllli-lJOH-IIIW
was an unexpectedly high value for a soil that was characterized as “a fat clay."515 Dr. Darling
commented that this was likely “an example of running a [hydraulic conductivity] test with some
caliclte in the sample":16
Dr. Darling agreed that there is “a substantial caliche layer“ throughout the Site,“ He
also acknowledged that there are no hydraulic conductivity values specilie tn caliche soils ut the
Landfill. However. based on his decades of experience working with caliohc in 'l‘exnsi he has
not “seen much in-situ oalichc that doesn't have very low permeabilityw'" A5 ed about Aligned
l’rotestzmts‘ witness testimony that caliche in Colorado County has been used for liquid sewage
disposal (discussed below), Dr. Darling said he would not expect caliehc to be permeable unless
broken or weathered?” He acknowledged that that prior to the Altair Applicatium he had
m
it it;
not worked in Colorado Count»
I" Aligned Protestants
ML lledgeoxe stated in his profiled testimony that he had reviewed ’l‘CEQ technical
guidance indicating caliche is a poor choice for WM waste disposal, The language he referenced
is in 'l'G-Z and reads as follows:
Karat areas in limestone: dolomite, and ealiehe serve as poor hosts for industrial
solid waste landfills due to their high hydraulic conductivity?“
Mr lledgcoxo testified that a karst area is “not unlike the hills of Austin," where the
predominant near surface geologic materials are “highly weathered limestone that weather out
~~
5” 1113(821,
‘
T113!
. at 322.
V .
5” Tr. at7ll.
*7 '1'?
3113!?
“2“
T12 at 1338.
57“
Aligned Protestants Ex. l-3 a1037
SOAIIDOC~ ET 0. 582484960 PROPOSAL FOR DECISION PAGE 103
TCEQ DOCKET M)‘ 2018v3~lHW
into what is commonly referred to as a sinkhole sometimes.“22 He agreed that the sentence from
T02 can he interpreted two ways. It either refers to karst areas in (a) limestone, (b) dolornitci
or refers to (l) karst {MCBS in limestoney (2) dolomite, and

and (c) caliche (Altair's reading) it
He testified than he believes the latter interpretation is correct and noted that there is
(3) ealiehe.
no karst arcs, at the Site, but it does have “a lot Of caliche."525 Mr. Hedgcoxc (aid it is his
professional opinion that the caliche at the l nndiil‘r can have "moderate to higher
permeability.>624 l-le based the opinion on his experience “having drilled numerous borings in
Gulf Coast soils including the Beaumont l'iorrnation,“ and also on his review of literature
--525
indicating that caliehe “can have hydraulic conductivity in the range of l x 10‘ cnt/sec,
Mr. Weishuhn said that eallche soils at the Barton property were “rock-like or seemingly
lightly cemented when in place" but

"
~ sicaily pulverizeldl“ when “exposed to a backhoe
httcket.“‘2‘" Caliche soils in the Colorado County area, in his experience, “are characterized as
soils typically with a white color, may be soft, friable and powdenlike to hard and rock—like but
typically capable of absorbing water at a rate of 0.2 gallons per day per square foot?”7 He has
installed below~gmnnd liquid waste disposal facilities into ealiche deposits in Colorado
County.”3 Mr. Weishuhn testified:
What interesting about caliehe

is
residential on-site wastuwater, we’re
~
Lhal in the line of work that we do for
.
actually able to dispose of Wastewaler into

caliehe soils, i.c.. those soils will nbsorb waiter and hence our concern related to
(limit: same materials at the [Mandi-ill site?"
~
53)
Al llUOflL
Tri at llfll,
Aligncn Pmmtnnrs Ex. 1 a: 008.
Aligned Protestants Ex, 1 MODE.

‘13
Tr, at l 157
Aligned Protestants LR. 2 at 08ft

53 Aligned Protestants li‘c 2 410080.
’1’
TL at 1155M,
SOAH DOCKET NO. 582-123-1960 PROPOSAL FOR DECISION PAGE IDA
TCEQ DOCKET N0,2018-0013»1HW
The TCEQ wastewatcr disposal niles applicable to Mr. Weishuhn’s work “deal with the disposal
of residential and commercial wastewater at flows of less than 5,000 gallons per day,” or
“domestic wastcwater."53°
Mrs Weishulm eonceded that he has not visited or performed any testing at the Altair Site,
including of the caliche at the l.andfill.53‘ He also agreed his field testing at the Batten property
was a “qualitative evaluation” and would not substitute for laboratory soil tests that TCEQ
requires for the Application,532 However, it is his professional opinion that it is inappropriate to
say that “eatiehe, in situ caliehel in and around Colorado County is impermeablefih
Asked about how to interpret the excerpt from ’l‘G-Z that Mic Hodgcoxe cited,
Mrt Weishuhn stated in his pre-filed testimony that he “agreed” with the sentence as written?"
On cross—examination, he conceded that he did not know whether the “limitation on limestone,
dolomitc[,] or caliche [was] limited to karst areas.”535 He noted that karst areas “are typically not
present in Colorado County,”36
c. Darmor
Mr. Barton testified that his experience with oaliehe is that it “can be very soft like
limestone or more solid than limestone."53v He has found caliche material in Colorado County to
be “more porous and permeable than clay."538
«,1
TX”. at 1166‘
51 'l‘r. at l 167.
5“ Tr, at l l 68,
53
Tr. at 1166‘
5“ Aligned Protestants Ex. 2 at 086.
5‘
Tr. at 1152
M Tr, at l [SI-53‘
53 Dannor Ex. I 317‘
5‘5
Darmor Ex. I all
SOAH DOCKET NO. 58248-1960 PROPOSAL FOR DECISION PAGE105
TCEQ DOCKET NO. 2018-0013JHW
d. The ED
In the 2015 NOD, Ms. Schreier pointed out that soil samples with hydraulic conductivity
values “greater than 10‘7 em/scc in the clay unit correlated with a notation of either caliche or
calcareous and ferrous nodules on the corresponding boring logs.”39 According to Ms Schreier,
the “Application suggested” that this correlation between higher hydraulic conductivity values
and the presence of calichc was due to the caliehe being fractured during collection.
Ms. Schreier found this to be a “plausible” explanation,Sm She said Dr Darling sent her a Video
of acid being dripped onto sediment samples that "fizzed, which generally indicates a carbonate
material, which would be consistent with ealiehe.“5“ Accordingly, Ms. Schreier saw caliche as
“part of the site characterization" and “expected” to be found at the Site and the Landfill.542 She
would anticipate that undisturbed caliche would be “less permeable than the soils around it,”
consistent with the Applications“
Asked about Mr, Weishuhn’s testimony that he has disposed ofwastewater below ground
in calichc deposits within Colorado County, Ms Schreier testified that she has “no knowledge of
that particular subtliscipline” so she “would not argue with him. 3:544 She commented that it
“would not surprise” her if there is a “range ofpermeabilitics for in situ Texas caliche soils.”545
if a represenuttion was made that caliehe at 21 site was “impermeable,” she would want to know
what supported that characterimtion, such as whether the caliehe was dry, whether there was
water within that strata, what was the permeability of the surrounding matrix, and whether
fractures (if present) were obviously old or fresh,546
53"
ED Ext 5 at 1-2
~
~
5‘“
Tr. at 1570-71.
5‘:
TLat I619.
5“ Tr,at1570.
5“ Tr, at l57l,
5“ Tr. at [637.
m l'r‘at163?—38r
5“ Tr. at 164l-42.
TCEQ DOCKET NO. 2013-001}l
Ms. Schreier said if she were asked to characterize the “approximate permeability of
ealiche material such as . . . observed at this site.” her answer would be that she “would not know
without site-specific data.”547 Without testing, she would not feel comfortable representing a
specific permeability for ealichc.54x Ms. Schreier was asked, “Did the Applicant ever provide
you with actual ealiehe hydraulic conductivity data that would be reflective of the site
conditions?” She answered, “No,”“9
e. ALJs‘ Analysis
The presence of caliche at the Landfill is undisputed It is formed as nodules within clay,
and is markedly present in horizontal beds beginning at 14 to 18 feet below ground. However,
the parties’ characterizations of this caliehe are diametrically opposed. Altair asserts that
undisturbed caliehe is dry, hard, and nonporous, though it is brittle when struck with force, such
as with a drill rig. Mr. Weishuhn stated that some caliehe in Colorado County may be hard and
rock-like, but it may also be sofl, friable, and powder-like. Rather than being “impermeable,”
Mr. Weishuhn said caliche in the county is “typically capable of absorbing water at a rate of
0.2 gallons per day per square foot." He has personal experience with that absorptive quality,
having disposed of wastewater into below-ground ealiehe in Colorado County. Mr. Batten said
he has found caliche in Colorado County to he more porous and permeable than clay soil.
The meaning of the sentence in TG—2 that Mr, Hedgcoxe cited is unclear. It was agreed
that there are no karst areas at the Site, and they are atypical in Colorado County. The primary
evidence consists of the personal observations of four witnesses: Dr. Darling has found eaIiche
across Texas to be relatively impermeable; Mr. Weishuhn has disposed of wastewater into
ealiehe in Colorado County; Mr. Hedgeoxe has found that caliche in the Gulf Coast and the
Beaumont liemtation may have “moderate to higher" permeability; and Mr. Barten describes
Colorado County caliehe as more permeable than clay,
3’"
Tr. ul 1650.
“K Tr. at 1650.
“9 Tr. at 1655.
SOAH DOCKET NO. 582-18496“ PROPOSAL FOR DECISION PAGE 107
TCEQ DOCKET NO. 2018700l3~lHW
Mg Sehreier said she was not given "actual caliohc hydraulic conductivity data that
would be reflective ofthc sito condition ~ Dr. Darling said no hydraulic conductivity tests were
run on caliclte core samples because they are almost always fractured, and no in situ tests were
done, On the other hand, Dr, Darling also testified that '4 “lat clay"' sample from a 2014 boring
that had a hydraulic conductivity value 01'2V8 x 10“ CID/SEC was likely "an uxau‘tplu of running a
test with some caliche in the sample.“ The evidence does not indicate how many samples should
"have an asterisk.“ so ~ to speak} to denote the uncertainty associated with caliohe, This
uncertainty is another shortfall in the eVidcnce that showx inadequate characterization of the soils
at the Landfill.
The ALls find it telling that Ms, Schreier acknowledged Texas caliclte could have a
range of permeability values and that she would not charaetcriyu caliehe at any given location
without site~spceific data. Given that statement: and the absenec ot‘rcliahle site-specific data,tl1e
ALIS {ind Altair has not shown by Lt preponderance of the widence that the soils under the
Landfill. which include considerably oalichc. do not exceed the hydraulic conductivity standard
of l x 10‘7 cmt’sec in Connnissron rule 335.204(e)(tl)(8), This it. another basis on which the
ALIS recommend the Application be denied.
5. Summary of AIJS’ Analysis Regarding Site Location Standards
The ALJs’ findings are summarized here for convenience. The ALJS find that
Commission and and 335.201 are the most important to the silt: location
~
rules 33<.2l)4(e)(4) (5),
standards contested in this ‘c, A a preliminary matter, the Al J x determine that the notations
in Commission rule 3 ~ V204(c)(4)(8l ("lD’7 cut/sec") and 335i204(e)(5)

(“10's otnt's~ ~ ’") should
be interpreted as ~
“‘3 ‘< 10” crit’soc" and “‘1
x 10'5 Urn/soc.“ respectively, The two rules should be
trad together to require that the first live feet of soil around an 11W landfill must meet the
standard in Commission rule 335i204(c)(5). but For an HW landfill that overlies an aquifer: there
must be at least 10 feet of soil with hydraulic oonducrivity of no greater than 1 x l()'7 cmt’sec
wither in the first l0 feet of soil beneath the containment unit) or in 10 feet that separate the
containment unit trom the aquifer after more permeable soil in the first five feet is excluded.
SUAU DOCKET NO. 582-lfl-1960 PROPOSAL FOR DECISION PAGE 108
The concept of geometric mean is useful when the goal is to smooth out outliers and
understand the central tendency of the data. Howevert Commission rule 335.204(c)(4) and (5) is
intended to disqualify those sites that are “clearly unsuitable.” and the rule recognizes the
"extreme importance” of protecting Texas aquifers In Altair’s ease the application of a
geometric mean to normalize widely divergent hydraulic conductivity values across the Landfill
l'ootprint 15 counter to the goals of the Commission rulest The geometric mean has not been used
to oliaroctci ~e soil (into in any other permit application for n new hazardous waste landfill
approved by lhc EU or the Commission, Moreover. Altair's application of the geometric mean is
particularly distortiyc 01‘ the data because it excludes any non—clay samples and then assumes any
untested soil has the hydraulic conductivity ot‘clny as estimated by the geometric mean.
'1
he A ~ find that the Landfill was proposed based on data that was twice reiected in the
19905 by the ED for important concerns including the presence of sand and gravel mining in the
area; shallow groundwater and extensive sand and gravel formations, and the lack of
confirmation regarding the presence of stilliciently impermeable clay between the containment
structure and the aquifer. The 2013 Application was based on the same 1990s Data without an
cxplunation of how prior concerns were resolved. Although Altair distinguished die proposed
Landfill footprint from soils at the Site more generally~~~ he (Ecology Report stated it wens “very
important to note" the "overall consistency across the site“ of hydraulic conductivity values.
The evident-e does not indicate how the legitimate concerns raised in the 2014 and 20l5
NODs were resolved. '1

he in situ hydraulic conductivity tests requested in the NODS were never
performed. Sand and silt content of soil samples including those classified as primarily clay, are
consistently in the 25% to 40% range indicating the clay soil likely has greater permeability than
homogeneous clay. llyth‘aulic conductivity values and grain size analyses performed in the 2018
invc igzttion show that variability is the only constant feature which supports the experience of
Mn Mn Batten as a gravel and

~
Weishuhn as a civil engineer and sand mining business owner in
Colorado County. In addition, no in situ tests were performed to establish hydraulic condueti
For sands or calithet l‘hat is a particularly important data gap given Mrt Weishuhn’s testhnony
TCEQ DOCKET NO. 2018-0013-II-IW
that caliche in Colorado County can be used for below-ground wastewater disposal due to its
permeability.
'l‘CEQ’s guidance regarding site location of landfills (TG-Z) is another point of reference
in assessing the Landfill. The LRT map classifies the bulk of the soil in Colorado County as
land unit types that are poorly suited to solid waste disposal, The clay at the Landfill is not
homogeneous, massive, or nearly impermeable, and it does not provide a large vertical
separation from the aquifer. Sites that have stratigraphic complexities such as the Landfill
should be expected (per TG-2) to require significantly greater investment in subsurface

investigation. Unlike the US, Ecology facility in Robstown, the Landfill does not have laterally
continuous clay to 30 feet below ground, and U.Si Ecology also made 270 borings, for more than
at the Landfill. TG-Z is consistent with the ALIS: finding that the Landfill has important
geologic drawbacks as a site.
Sufficient doubts have been raised about the quantity and quality of data that Altair
proposed Landfill location meets the standards of
’
cannot show on the record evidence that its
Commission rule 335,204(e)(4) or (5), or 335.203. The ALJs therefore recommend denial of the
Application
I). FINANCIAL ASSURANCE/FINANCIAL INFORMATION REQUIREMENTS
The Texas Health and Safety Code requires financial assurance and disclosure by
applicants for hazardous waste management facilities:
Before a permit may be issued, amended, transferred, extended, or renewed for a

hazardous waste management facility, the commission shall require as a part of
each application information it deems necessary to demonstrate that an applicant
has sufficient financial resources to operate the facility in a safe manner and in
compliance with the permit and all applicable rules, including how an applicant
intends to obtain financing for construction of the facility, and to close the facility
in accordance with applicable rules. That information may include balance
sheets, financial statements, and disclosure of relevant information regarding
SOAH DOCKET N0.SEZ-18~1960 PROPOSAL FOR DECISION PAGE 110
TCEQ DOCKET Not ZUIE-DOD-IHW
investors and stockholders, or information required by Title 40, Codc of Federal

Regulations, Part 264, Subpan 11.550
Commission rules specify that an application For a permit to store, process? or dispose of
hazardous waste must meet certain financial requirements. Specifically, Commission rule
305.50(a)(4)(B) requires that:
An application for a permit to store, process, or dispose of hazardous waste shall

also contain financial information sufficient to demonstrate to the satisfaction of
the executive director that the applicant has sufficient financial resoutecs to
operate and close the facility in a safe manner in compliance with the permit and
all applicable rules as well as how an applicant intends to obtain financing
for
construction of the facility. Financial information necessary to satisfy this
subparagraph shall be as follows:
(i) For publicly traded entities:
(1) copies of the most recent two Securities and Exchange

Commission Form lU—Ks;
(ll) :1copy of the Securities and Exchange Commission Form

10-Q for the most recent quarter;
(III)
~
a statement signed by an tuithori/cd signatory consistcnt
with g 05.4401) of this title (relating in Signuloiics to
Applications) explaining in detail how the applicant
demonstrates sufficient financial resources to construct,
safely operate, properly close, and provide adequate
liability coverage for the facility. This statement must also
address how the applicant intends to comply with the
financial assurance requirements for closure, post-closure,
corrective action, and liability coverage consistent with
Chapter 37, Subchaptcr P of this title (relating to Financial
Assurance For Hazardous and Nonhazardous Industrial
Solid Waste Facilities); and
estimates of capital costs for expansion and/or construction
~
(1V)
if the application encompasses facility expansion, capacity
expansion, or new construction[,]5“
55"
Tex. Health & Safety Code § 361‘085(a).
5" 30 Tex. Admin, Code § 30S,50(a)(4)(l3)(i)(I)—(IV).
50A}!DOCKET NO. 5824871960 PROPOSAL FOR DECISION PAGE 111
TCEQ DOCKET NO.2018-0013~IHW
The Commission rule requires different documentation to satisfy this requirement for privately
held entities,552
Additionally, before a permit may be issued, Commission rules require an applicant to
establish financial assurance for the estimated costs of closure, post-closure, and liability
coverage in a manner that meets the requirements of Chapter 37, Subchaptcr P of the
Commission rules,553
The Application represents that Altair is a wholly—owned subsidiary of, and effectively
controlled by, Clean Harbors. The Application includes publicly available audited statements,
estimated construction costs for the Altair Facility of $6,654,419, and a letter of guarantee from
Clean Harbors’ President and Chief Financial Officer certifying that Clean Harbors will act as
guarantor for Altair to ensure that Altair has the financial resources to construct and safely
operate the Altair Facility”
1 . Altair
Altair contends that it is common for applicants to address financial assurance
requirements by relying on corporate guarantees. Relying on the testimony of Mark Stoel’mer) a
TCEQ Financial Analyst. Altair argues that the financial information requirements of the
applicant can he provided by the parent company.555
In this case, in response to an NOD regarding Altair’s financial capability to provide
sufficient financial resources to construct, safely operate, properly close, and provide adequate
closure and liability coverage for the Altair Facility, Altair delivered a financial disclosure
551
30 TEX. Admin. Code
~
§ 305i50(a)(4)(8)(ll), (iii).
553
30 TEX. Admin. Code 335.”?
5“ Altair EX. 722 at 00i097, 001213, 0035264542131) EX. l at 50.
5‘5
Altair Initial Brief at 42; Aligned Protestants Ex. 6 at 4548,
SOAIIDOCKET NO. 582-] 8-1960 PROPOSAL FOR DECISION J’AU E In
TCEQ DOCKET N0 2018—0013-1HW
later?” The financial disclosure letter provides that in (min to comply with the financial
disclosure requirements otCtimmission rule 30550, Clean Harbors. of which Altair is u wholly-
owned subsidiary. wtll act as a guarantor which:
[G]uzirantccs in thc event that [Altair] fails to 0pcrutc, close: perform corrective
action, mid/or provide post—closure cure [for the Prnpossd IllW Landfilll in a safe
manner. and in compliance with the permit and applicable rules, [C lean Harbors,
Incl] shall provide sufficient resources to do so. will also guarantce thatWe
[Altair] will sufficient resources for constructitm costs Clean Harbors, Inc,
Il.’t\’c
will act as guarantor to [Alttlirjtm
Mr. (Braves tcstiiicd that the purpose of financial assurance; is K) cnstuc there are
sufficient financial rcsout‘ccs to operate the facility in a safe manner and in complittncc with this
peimit and applicable mics?” lie: prepared the statement of financial assurance and compiled
the supporting documentation for the Application by miifetriiig with Alutir personnelw
Mr. Graves stated that Altair hats denwnstrzited in the Application Via the statcmcnt of financial
assurance (including the guarantcs from Clean Harbors to act as guarantor for Altair)‘ the SEC
lO-K and lO-Q reports [01‘ Clean Harbors, and the estimatc of costs to initiate OpefilllOIl of the
Altair Facility, that it has or will have sufficient financial tisstttmtcc as rcquircd by the
Commission‘s rules“
2‘ The El)
l‘hc ED is satisfied that both the pmposcd financial assurance and financial capability
demonstration nicct the rcqttircments nt‘Cnmmission rulcsxiM Clarifying thc distinction between
the Commission‘s financial assurance requirement and Ilic financial capability dateimineition, the
~
55”
ED EXS. 4-5.
"7 Altair ,
2-2 $003526.
55‘ 2at9t>797.
Altair t
“3'
Altair ~~~
x.~ 2 n196‘
“3 Aim “.2 M97
‘6‘
ll!) Ext 1 4941; 30 'ct Adzniit Code chs. 31335. § 30‘V50(2\)(4)(A), (B).
SOAH DOCKET NO. 582-113-1960 PROPOSAL FOR DECISION PAGE I [3
ED explains that financial assurance is a source of funding or other guarantee of funds that is
available to the TCEQ to pcrfonn an activity like closure, post-closure, or corrective action,
should a permittee fail to do so; and it appears to be uneontroverted. Financiai capability is the
requirement that an application include financial information sufficient to demonstrate that the
applicant has sufficient financial resources to operate and close the facility in a safe manner in
compliance with the permit an all applicable rules, as well as how an applicant intends to finance
the construction of the facilit am
With regard to the type of information to be provided to meet the financial capability
requirements, it is the ED’s position that the designation of “for publicly traded entities” and “for
privately traded entities" in Commission rule 305.50(a)(4)(B) refers to the financial information
necessary to satisfy the ED under the last sentence of Commission rulc 305,50(a)(4)(B)7n0t to
the applicant’s entity status.563 in practice, the ED states that the Commission allows financial
information of a parent company to satisfy the financial capability requirements of an applicant
for a hazardous waste permit.“A
Mr. Stecbncr has worked for the TCEQ since 200i , currently as a Financial Analyst. His
job duties include applying the Commission’s financial assurance rule requirements, and he
reviewud the financial assurance demonstration for the Application.565 Mr, Stoehncr agreed that
Clean Harbors is a publicly traded company, Altair is a subsidiary ofClean Harbors, and Altair is
not a publicly traded company.566 Concerning the financial assurance deficiency cited in the first
technical NOD, Mr. Stoebncr explained that Altair cured this deficiency by providing the
guarantee letter from Clean liarbors,567 Altair provided a letter from Clean Harbors stating that
5“ ED lni ~
Brief at 15-16 (noting the parties have used the two terms interchangeably throughout the course of
1
the proceedings); Tex. Health 8: Safety Code § 361.085(n); 30 Tex. Admin. Code § 305.50(a)(4)(B); Aligned
Protestants Ex. 6 at 16.
5"]
Iii) initial Briefat 13.
5“ Aligned Protestants EX. 6 at 42, 45, 47.
“5 Aligned Protestants Ex. 6 at ] 1-12 25.

5“ Aligned Protestants Ex. 6 at 24.
557
Aligned Protestants Ex, 6 at 37; ED Exs. 4 at 8; 5 at 6»S.
SOAH DOCKET NO. 582-18496!) PROPOSAL FOR DECISION PAGE [14
Altair individually could not meet the financial information requirements, but that Clean Harbors
would be providing a corporate guarantee to the Application.568 In Mr. cbner‘s opinion, the
information provided by Clean Harbors on behalf ot‘ Altair meets the requirements of
Commission rule 305.50(a)(4)(B).559
3. Darmor
Durmor’s position is that the Commission rules set forth a clear test for financial
assurance, and Altair did not‘ and cannot, meet the test. Comparing the requirements for
financial assurance for closure, which specifically allow a corporate or parent guarantee; there is
no similar provision to allow for such a guarantee for financial assurance for operations?”
Therefore, Dannor contends the Commission’s rules do not allow for use of a corporate
guarantee to demonstrate financial assurance for operation of a hazardous waste

landfill.571
Darmor does not dispute that Altair has met the financial assurance requirements of Chapter 37
of the Commission rules, dealing with financial assurance for closure?”
As support for Darmor’s interpretation of how the Commission’s rules should be applied,
Darmor explains that there are clear policy reasons for the additional financial assurance
requirements for operations. Citing that Texas has more than 50 sites on the federal Superfund
national priorities list, and an additional list of over 150 contaminated sites identified by Texas;
Darmor contends that Texas developed strict requirements for financial assurance to ensure
taxpayers would not he lcft paying the bill for poor operations,573
~
5"“
Aligned Protestants Ex. 6
5“ Aligned Protestants Ex. 6
at 26.
at 3263.
57“
Damor Initial Brief at 28 (comparing 30 Tex. Admin Code ch, 37 with 30 Texr Admin.
Code 305,50(a)(4)(l3)).
5“ Darmor Initial Brief at 32.
5“ Darmor Reply Briefat 14V
5” Darmor Initial Brief at 32-33.
DOCKET NO. 5814944060
.‘iOAH PRONEAL FOR DECISION PAGE 115
TCEQ DOCKET NO. 2018001.;l
Finally; Darmor argues that the Commission rule is clear. it does not allow for a
corporate guarantee for financial assurance for opm'ations, and thcrct'oic, a tulcntakittg proccdutc
~
would need to be initiated for the HI) to accept our;5H lt‘tht: Commission rule is unclear, than
the Commission‘s interpretation is nccdcti ~not the liD’s. In addition. Darmor dixagtcca that
the language in Commission rule 30550ta)(4)(}l) gives the ED authority to determine what is
required “to demonstrate to the satisfaction of the [FD] that the applicant has sufficient financial
rcsourccslil“ Arguing that ifthat intcrprcmtion is truct then the ED could accept any alternative
prooi'ol‘ financial capacity with no standards {or what constitutes adequate proof; Dannor points
back to thc t‘ulc language which states that "|_t]iunnciul information ncccssary to satisfy this
subpamgraph shall bc as follow: . . ,

I’m
Alignrd Protestants contend that Altair failed to provide financial étssurtmcc specified by
Commission rules for construction and operation oi‘tlic Altair Facility, and tltetctbrc the permit
should not he issued.577 Looking at the Commission rules regarding financial assurance
requirements for closure, post—closm'c, and liability purposes, thc rules allow various options for
meeting them. such as trust funds, suicty bonds, insurance, S'l'WUI‘li] mtg; and corporate
guarantees?” Aligned Protestants stress that thcrc is (1 separate requirement for financial
assurance for construction and operation of hamrdous Waste landfill disposal lhcilitifl ltowcvetx,
and that regulation specifies the type of financial information to be provided {or privately held
cntitics and for publicly ltcld entities.‘79 They bclicvc that Commission rule 3()5.50(a)(4)(B)
Dammr Initial Bl'icfat 32, 31.
73
Dut'mor Initial Bl icfat 3S.
7“
Dal-mm cly llriefat :5, citing 30 Tex. Admin, Code ; 305V50(zt)trt)(8).
"‘
Aligned Pz‘otcstants Initial Bficfttt 3i.
“a Altgnted Protestants Initial Bricf M 29 (citing 30 Tex, Admin. ~ >150 ch 37, sub. Ch I‘, ur incorpomtcd by
§ 335179)
5“ 30 Tux Admin Code 5 3~(t~~50(8X4lll3lv
SOAH DOCKETNo.582-18-1960 PROPOSAL FOR DECISION PAGE [16
T( EQ DOCKET NO 20l8—00l3-IHW
should be interpreted to mean that thc financial infinmation necessary to satisfy the
i‘cquii-cmcnts. pcrtains to the applicant, not a corpuratc guamntaefw
5. LCRA
LCRA did not offer evidence or argument on this issue.
6. ()PIC
OPH‘ takes the position that a curpnralc guarantee is an acceptable altcrnativc mechanism
for financial assurance and therefore Altair met the financial assurance requirements of
Commission rule 305.S(](a)(4)(l3). While the Commission I‘lllC does not cxplicitly state whether
financial statcmcnls from a parent company are acceptable :0 demonstrate sufficicnt financial
resources. 01’“) paints that the rule language suggests that the 1.31) has discretion?“
7. ALJs’ Analysis
Aftct a review of the information provided in the Applicaticn regarding financial
assurance for closurc and postrclosum care of the Altair Facility. the ED down-mined that Altair
satisfied the requirements nl~ Commission mlc 335.179 and chapter 374 suhchaptcr P732 No
party contested this dctet'minatiom theicl‘orc the ALJS find that the ptepnntlciant evidence
establishes that the Application meets the financial assurance requirements for closure. post-
closurc, and liability coverage as specificd by Commission rulc 3.35.179 and chapter 37.
subclmptcr l’.
~
m; Aligned Protestants Reply Brie!
éS
a: 39.
du'ecmr that (l2: applicant has sufficlsm financifl

('53
ED Ex. I at:«)-50;A1mirux. 2») at
~
30 Tax. Admin. Code § 305,50(a)(4)[13) (’ nancial iul'imnatiott x to
ul'ccsl.}" (emphasis added».
00352425..
l
~
uie'mom'lraze :‘(7 Mia are ~
SOAH DOCKET NO. SHE-IS-l‘ml) PROPOSAL FOR DECISION PAGE [)7
TCEQ DOCKET NO. 201870015414“!
with regard to compliance with the financial capability (also rcl'crrcd by the parties as
financial assurance for operations) requirement contained in Commission rule ‘40550(a)(4)(B),
the Al agree with Dzumur that the ED does not have unlimited discretion to decide what
information satisfies the requirements for financial assurance for operations; howcvcr. the A1,.ls
do not agree that the information required by public and private entities refers to the permit
applicant in all cases in this case, the applicant, Altair, is. ti wholly owned subsidiary of Clean
Harbors, and Clean Harbors has guaranteed resources sufficient to construct. operate7 clusc, and
perform corrective action?“ Thc ALls agree with the 130‘s reasonable interptemtion of the mile,
that the financial information required to stitisl'y the lil)‘ refers to Financial information required
form 1hr: entity making the assurance—in this instance. Clean l-Iarbersi
In this casct the El) rcviewed the financial inlbrmation proritlcdl, and concluded Altair
complied with the financial capability requirements of Commission rule BUSi50(a)(-Il)(l‘5).584
Specifically the corporate guarantee letter from Clean Harbors guarantees funds for Altair to
operate, closer perform corrective action, and provide posr~elosure

carc.”5 As evidence of the
financial resources of Clean Harbors to make such guarantees. the Application included
Securities and Exchange Commission (SléC) Form IU-K for the last two years and SEC Form
lO-Q for Clean Harbors, as well as an estimate ol'the capital costs for construction ofthc Altair
Facility,“ For these reasons, the ALIS find that the Applicatinn meets the financial capability
requirements contained in Commission rule 3US,5{l(a)(4)tB).
E, WASTE ANALYSIS PLAN AND WASTE CHARAC'I‘ERIZATION
A wustc analysis plan (WA?) is required by Commission rule 305i50(a){9) and must
WAP
~~
~
identify the known and potential sources, types and volumes ofwnsle to be disposed, l'hc
for Altair states that the Landfill will be authorized to receive only two waste streams: (l) ash.
‘
2-2 (110(13526
, ‘
lat 50-51;s
‘3‘
Aiiair l x, 2-2 at 003526.
5‘” 003530—843, (l012l3~|4.
Altair it r
at
SOAIIDOCK ~
0,582-18-1960
Deer Park and “dry” thermal

slag, and other residue from incineration of waste at the Facility, (2)
residue from the DuraThcrm Facility and proposed off—site TDUs.537 The definition in the
Final Draft Permit, as discussed below, includes more detail regarding the waste streams.
The Application asserts that because Altair will be a noncommercial facility and the
properties of the incoming waste will be known, there is no need for an onsite laboratory to
perform confirmation testing. Aligned Protestants, Banner, and OPlC argue Altair needs to have
an onsite laboratory comparable to those of commercial hazardous waste facilities. OPIC
suggests that the laboratory could be required as a special permit provision, but Darmor contends
that there is insufficient information in the WAP to draft apermit provision.SEE
As previously discussed, the ALJs find that the Landfill should be characterized as a
commercial facility. As such, Altair should be required to have onsite waste analysis
capabilities, which commercial facilities typically have. The ALJs also find the Application’s
waste characterization lacking. Accordingly, the Al recommend denial of the Application for
an insufficient WAP for a commercial facility and inadequate waste characterization (regardless
of the type of facility).
L Altair
't"
he WAP states that, "unlike typical commercial hazardous waste facilities, it will not be
necessary to have an 0n~site laboratory with analytical capabilities” at Altair, because

the
“chemical sampling and analysis will have already occurred prior to waste arrival at the
facility.“589 There will be a preacccptance process performed by the Clean Harborsownod

shipper of the waste (the Deer Park Facility, the Dura'l'herm Facility, or a mobile TDU); Landfill
5“ Altair Ex, 2 at000869i

5“ OPIC lnitiui Brict‘at 16; Dannur Realy Briefat 16.
“9 Altitlr Ex. 2-2 at 001460.

SUM! DOCKET Nasal-184960 PROPOSAL FOR DEC‘lSION PAGE 11')
TCTEQ DOCKET NO, 2018—00134HW
personnel will conduct "waste inspectimir’verilieatinn" on each incoming load; and the waste will
be disposed in the l andfillfi‘m
Mr. Graves testified that each waste stream and load will be given a unique tracking
number that dewrihes the waste stream. the waste type, and whether it is hazardous?“
Pie-acceptance requires the Clean Hat-hers waste generators sending Waste to Altair to provide
documentation tuluding “TCEQ waste numbers. generator/contact information. waste
generation dzttttr waste properties and composition shipping and safety data; regulatory
information. and 3 Waste Profile Sheet, which outlines the chemical and physical properties of
the waste strewn.”92 Because Altair will accept the same waste streams currently accepted by
the Deer Park Facility" Mr. Graves asserted that the “chemical propt‘rtics ol‘thc \ 'nste streams are
wellvlmmvn" and “there is no need for further chemical analysis on»sitc’" at Altair:593
As proposed in the Application, when an incoming land (’tlTt‘S at Altair, Landfill
personnel will check the documentation provided vtilh the load and V'eually inspect the want: to
vet ~ its appearance is consistent with the waste profile and manifest?” if Landfill personnel
have “a reason to SU‘SPCCI there are free liquids in the Wash: load," they will perform a paint filter
test.505 The paint filter test will identify whether there are free liquids. but it does not provide the
chemical cnmposition ol‘the waste.“
in develop a waste characterization for the wastes expected to he accepted at Altair,
Mr. Graves asked Clean Harbors for information on a representative sample of the waste at the
Deer Park l'acility. lle “ttmk their [Clean Hurbors’] word for it“ that the information he received
’""
Altair ~ 2 at 001460.
~
5”-
Altai: EX 2 at 000870.
5'“ Altairt‘u,~ 232000870.
59‘
Altatr tix. 3 at 000870-71.
’9“
Allow Ex, 24 at 00 l465-(76
"5 Tr. at 363.
3* Tr. at 368. iii.
SOAI-I DOCKET
NOA 582484960 PROPOSAL FOR DECISION PAGE J20
TCEQ DOCKE'I N0. 2018~00l3-lllw
was “typical ot‘ the incineration residuesv

~ ’37
Mr. Graves agreed that some of the waste
information given to him was over 20 years old (with a processing date oi‘Januaty 5, 1998).”
HQ explained that the age ot‘ the in )rmation did not bother him‘ but he confirmed that he could
not say whether it was actually typical (it what the Deet‘ Park Facility processes today.”
Mn Graves also acknowledged that some ol‘thc wastes indicated to be representative had “DEA”
listed as their source, which he inferred was a reference to the federal Drug Enforcement
Agency. He did not ltnow whether that inference was correct and if s ,
whether DliA waste
(drugs) would be hazardous wastedm
The final Draft Permit notes that the waste from the Deer Park Facilily “includes
incinerator fish. rotary reacttvr ash, filter cakes, crushed drums, construction debris, hazardous
plant dirt, empty cylinder carcasses, tellerettes, and spent carbon

~(0‘ Although Mn Graves
originally believed crushed drums would be incinerated, he said that he had “come to understand
that [the drumsl would not he placed through the iticinerntmxflw’: lle did not [mow whether
tollercttcs, which are "part of an air control device on the incinerator stack" would be
incinerated,” He also was unsute whether spent carbon (that had been used to absorb
contaminants from an alt" exhaust system) would he incinerated?

~ Any contmninants absorbed
into the spent carbon would still be present in that waste/’9’5 He said it was unclear whether the
“contaminated soil” that could be disposed at the Landfill would be ittcitieratetl.°”“ He described
SOAH DOCK ET N0. 582-18-1960 PROPOSAL FOR DECISION PAGE 121
'I‘CEQ DOCKET NO. ZOIWOIS-IHW
the crushed drums, tcllcrettes, and spent carbon as “incidental material that results from having
an incinerator” at a facility.607
Mr, Graves agreed that commercial hazardous waste facilities typically have onsite
laboratories that are used to test incoming waste on a “prescribed frequency of testing" or as
indicated by the circumstances?” He described commercial facilities as espousing “the
philosophy of trust but verifytwuq He added that there is no “regulatory requirement that Allair
test the waste upon receipt,” Mr. Graves emphasized that all wastes accepted at Altair will be
certified to meet land disposal restriction (LDR) standards.“0 Because the waste is from a
known waste stream and will meet LDR standards. Mr. Graves opined that “one can be confident
that the waste should be able to be accepted at Altair?”
2. Darmor
Drt Zomberg testified, as discussed above, that the Landfill is a commercial facility.
Even if it is considered noncommercial, however, he asserted that the WAP must meet the same
standards as a commercial facility because the generators of the waste may vary and the waste
composition cannot be known with adequate certainty. Darmor also points to EPA regulations
that require “off-site” facilities to have the capability to analyze waste under certain
circumstances and asserts that Altair cannot meet these rules without onsite testing capacity,
a. Need to Characterize Incoming Waste On—Site Due to Variable

Nature ol'Gcnerator Sources
Dr. Zornberg noted that a manufacturing facility that owns a disposal facility can describe
with great confidence the byproducts of the manufacturing process that will be treated and
“‘7
~
Tr,at360.
6‘“
Tr. at369t
“’9
Tr al37li
“0 Tr. 211450-51,
6” Tr. at 1872.
80A“ DOCKET NO. SSE—1871960 PROPOSAL FOR DECISION PAGE [22
CICQ DOCKET M), 2018-0013-1HW

'
disposed an that disposal fertility.“2 When there are unknown and multiple sources or customer.
reason to require the disposal facility to be able to test and

of the disposal facility, that is kl.
confirm the nature of wagte before accepting it?3 The disposal facility also has to be able to
understand whether incoming waste streams are incompatible and pose combustion
risks or
could act in combination to weaken the liner, for exm‘nple.“4 Even two wastes that both meet
LDR standards could he incompatiblcf” AlfiO; he noted that the protocols lh'dl a facility uses to
transport waste¢ or to determine that waste should be disposed may not match the protocols in
receiving disposal facility uses to determine that waste is acceptable.M
According EL) Dr. 7.01‘nhtzrg, the post—incineration waste Altair is intended to receive
cannot be characterized as it" it is a dlSpOSJI facility that acccpts wustc from a single source as in
[he first example he gave, above. Wastes sent to Altair from the Deer Park Facility "depends a
significant part [on] what is thc original source" of the waste?” lhere are no limitations in the
Final Draft Permit on the generators from whom the Dem: Park and DttrnThcrm Facilities may
accept waste. Therefore, Dr. Kornberg said, he could not "attext that future byproduct of
incineration or thermal processing will look like what the byproduct of incineration
and thermal
processing has heen in the past,"”‘x The potential that future waste received at Altair will he
ditl’et'eni from what will initially be received means that Altair. in Dr. [ornherg’s opinion, must
have the capability to test waste onsitc io confirm its characteris es.” llc opined that it is
“elementary standard of practice" for n litcility to have onsltc testing capacity; regardless of
whether it is required by a rule.“
5” l‘r. at 1250—5 I.
“3 l‘r.at1251.
~
“‘7
Tr at l2l8_
5‘8
Tr. m 1219
W Tr. zit 1222723.
"3‘
Tr. at 1223
SOAH DOCKET NO, 5824871960 PROPOSAL FOR DECISION PAGE 123
TCEQ DOCKET NO. 2018-0013~1HW
b. EPA Regulations Require Off-Site Facilities to Have Testing

Capabilities
A second argument made by Darmor is that EPA regulations require Altair to “include a
plan for independent waste analysis?vGZI Darrnor notes that EPA’s regulations (incorporated into
Commission rules by reference), distinguish between “on—site" and “off-site" disposal facilities
rather than commercial and noncommercial.622 All facilities are required to “obtain a detailed
chemical and physical analysis of a representative sample of the wastes” before disposing of any
hazardous waste623 The waste analysis must be “repeated as necessary," including when an
off-site facility inspects an incoming load of waste and the “results of the inspection . r , indicate
that the hazardous waste received at the facility does not match the waste designated on the
An “must inspect, and if necessary, analyze"

accompanying manii‘cst[.]”624 off-site facility
incoming waste that is discrepant from the manifest“25 ’l‘herefore, Damior argues, the EPA
onsitefi25
regulations require Altair to have the capacity to perform the waste analysis
3v Aligned Protestants
Aligned Protestants reject the WA? as inadequately or incorrectly characterizing the
incoming waste, noting one shortfall is the description of the waste as “essentially inert?“7
Commission rule 335.507 states that “Class 3” waste is “inert and essentially insoluble, and
poses no threat to human health and/or the environment.” This includes materials such as "rock,
~
brick, glass, dirt, and certain plastics and rubber, which are not readily tieeomposable,“28
57'
Dan‘nur Initial Brief at 37.
m 30 Texas Administrative Code § 335‘ 152(a)(1) incorporates by reference subpart B of chapter 264 of the C,F.R,,
including 40 C.F.Rv §§ 264.10 to 26419
5“ 40 C.F.RV §264~13(¥1)(!),
“24
40 cm. § 264.13Ca)(3)(ii),
“5 40 CF R. § 264. l3(a)(4).
‘5“
Banner initial Briel'at 33-39.
m Aligned Protestants initial Briefat 31.
m 30 Tex. Admin. Codi) § 335.507,
SOAH DOCK ET NO. 582-121-1960 PROPOSAL FOR DECISION PAGE 124
TCEQ DOCKET NO. 2018~0013-IHW
Aligned Protestants note that, on cross‘examination, Clean Harbors’ Mr. Nielsen

admitted that waste from the Deer Park Facility was not inert because it could contain heavy
metals sueh as lead and mercury that are hazards to human health,” He explained that his
understanding of inertness meant a waste was “not hiodegradahlcf’630 Mr. Graves said that
“6” However, Aligned
“inert” is a “reasonable description of the vast majority of the waste.
Protestants highlight that Mr. Graves also agreed that heavy metals would be included in the
incinerator ash and other waste sent to Altair,632
4. OPlC
OPIC notes that “when certain waste received at Altair is not compatible, it may cause
chemical reactions that could endanger human health.“733 Therefore, “there should be a
requirement, as there is for a commercial facility, to perform onsite testing to verify that the
incoming waste matches the waste profile and characterization” made by the generator.634 OPIC
recommends that special permit provisions be included to ensure Altair has onsite testing
capabilities.
5. The El)
Mr. Venkat stated that the Application included sufficient information on Waste
composition and “typical analytical information on waste composition including typical
analytical information on the similar waste streams . . t and leaehatc generated” at the Deer Park
Facility.635 He noted that the Landfill is authorized to manage only “incinerator and thermal
5” ‘lr, at 6940‘
5’“
Tr, at 72,
63‘ '1‘):
at 360.
“2 Tr. at3l3
m OPlC initial Briefa: 17‘
“ ortc initial Brict‘at 17,
“'5
El.) Ex. I at 34.
residue ashes that have been stabilized to meet LDR restrictions."636 Mr. Venkot said that
contaminated soil and crushed drums would be acceptable only after passing through the
incinerator.537 The El) agrees with Altair that waste meeting the LDR restrictions from a known
(Clean Harbors) source satisfies the regulatory requirements for a WAP.658 The ED points out
that if a visual inspection "reveals the presence of liquid or sludge, samples will be taken and
paint filter tests will be performed on incoming loads."“39
6. ALJs’ Analysis
The ALJs find that Altair is a commercial hazardous waste disposal facility and should be
required to have onsitc waste analysis capacity, Altair asserts OPIC is mistakcn in stating that all
commercial disposal facilities must have onsitc laboratories. Regardless of whether it is a
requirement, both Mr. Graves and Dr. Zornherg testified that it is typical, and a standard industry
practice, for commercial facilities to have onsite testing capacity. Altair should follow suit.
Even if Altair is a noncommercial facility, it should be required to analyze waste onsite.
As currently proposed, Altair will be able to pcrform only a paint tiller test to confirm whether
liquids are present in an incoming load, and will not be able to perform any chemical analysis.
An inspector receiving waste at Altair may be able to detect whether the appearance or sound
(e.g., sloshing) of waste indicates a liquid is present. However, neither a visual inspection nor
the paint filter test will confirm that a waste is chemically the same as what is described on the
manifest. The paint filter test also will not allow Altair to test waste and confirm that it will he
compatiblc with other waste streams or waste already disposed at the Landfill.
~
Mr. Graves opined that Altair can confidently accept waste from Clean Hmbors entities
because the waste will meet LDR standards, However, Dr. Zornhcrg testified that even two
~~
~~
«as v
. at l382.
“7 Tr. at 1382-83,
"3 ED initial Briefat l9-20; ED Reply Bricfat 9-10
5‘"
ED initial Briefat 20.
SOAH DOCKET NO. 582-18-1960 PROPOSALFOR DEClSION PAGE 126
TCEQ DOCKET NO. ZOIS-OOIJ-IHW
wastes that both meet [DR standards could be incompatible, and Altair will not be able to assess
this risk without an onsite laboratory. It is also consonant with EPA regulations to require
testing capacity at Altair so that it can analyze waste as necessary.
The waste characterization in the Application is inadequate The “representativc” waste
information provided to Mr. Graves by Clean Harbors included waste manifests from over
20 years ago, and listed “DEA” waste, the provenance of which Mr. Graves could not identify.
The discrepant hearing testimony regarding whether crushed drums and contaminated soil must
be incinerated prior to acceptance at Altair was unresolved And, as Dr. Zomberg noted, the
Final Draft Permit puts no limitations on the types of waste the Deer Park and DuraTherm
Facilities can accept and treat for ultimate disposal at Altair, meaning the incineration residue
may change in the future. The ALJs find the waste characterization should describe more
thoroughly the current and potential types of incineration residue Altair may receive, and better
describe the other wastes (such as the spent carbon, telleret‘tes, crushed drums, and contaminated
soil) that are proposed to be included
F. DESIGN CONSIDERATIONSé‘“
Commission rule 335.173(a) requires landfill liners to meet various standards, including
being constructed of materials with chemical properties and sufficient strength and thickness to
prevent failure due to pressure gradients and/or physical contact with waste or leachatc.
Similarly, Commission rule 335.152(a)(12), which incorporates EPA landfill closure regulations,
requires a final cover to provide long-term minimization of migration of liquids through the
closed landfill.“
The parties contested whether the suitability of the high density polyethylene (HDPE)
liner for the Landfill had been sufficiently established, and Whether the geosynthetic clay liner
6‘“ another section

hot already discussed in
6‘
30 Code § 335.152(n){l2) incorporates by
J'cxas Administrative reference subpart N of40 C.F.R. part 264 “(as
amended through March l8, 2010 (75 FR 12989)), except 40 CPR. 264.301, 26"; 3M], 264,3l4, and 264.315,"
SOAH DOCKET NO, 58248-196!) PROPOSAL FOR DECISION PAGE l27
TCEQ DOCKET NO, ZDIS-UOIS-IHW
(GCL) that will be used as part of the final cover of the Landfill (GCL cover) had been shown to
be appropriate. The ALIS find that Altair met its burden of proof to establish that both the l-lDPE
liner and the GCL cover meet applicable standards.
1. IIDPE Liner
a. Darmor
Dr. Zornhcrg said HDl‘F, is the most common liner used in hazardous waste landfills.642
However, he expressed two concerns with respect to the Landfill. He questioned whether the
variety of waste that could be accepted at the Landfill had been adequately assessed in terms of
liner stress. He also stated that additional testing was required to ensure the compatibility of the
HDPE liner withthc lcachate that is expected to be generated.
Construction debris is one type of waste that can be accepted at the Landfill, according to
the Final Draft Permit. Dr. Zornberg said this “has implications for design."643 For example,
construction debris can affect the calculations and evaluations of “unit weight, . t . potential
defm-mation, and settlement[.]”‘’34 Altair's calculations of waste compatibility with the liner
were basod “only on the assumption that everything had the properties of ashes” as expected to
be received from the Deer Park Facility/“5 Differential settlement of waste in the Landfill could
affect the drainage of leachate, among other things.“16
Dr. Zombcrg opined it was not reasonable to assume that the proposed liner design at
Altair would be adequate merely because the Deer Park Facility also has an HDPE liner, and the
waste disposed at Altair will be the same as that currently disposed of at the Deer Park
“1 Tr. at 1224.
“3 'l'rt at 1224-25
"“ in at 1268.
6‘5
Tr. at 1268—69,
“9 Tr. at 1269.
SOAH DOCKET N0t582-18-1900 PROPOSAL FOR DECISION PAGE 128
TCEQ DOCKET NO. 20l3-00l3-IHW
Facility.6N lle said hc did not have information about the petl‘omtzmcc over time of the Deer
Park l’acillty’s llDPE liner and thus could not reasonably compare it to what would be expected
at Altair, More specifically, he asscttcd that it is imponant to conduct compatibility tests
because ol‘ the composition of HDPE linctst Dr. Zombcrg explained that llDl’E liners have
“additivcs that are called antioxidants;= but the nature of tho antioxidants is proprictmy
inlbi-mattion. That means that unless the "depletion nfthc antioxidants [is tcstcdl with at specific
\lc we may not know it" that typically very good choice of HDPlS will deplete those
~
t t .
way that we have not seen example. 431

in the literature. tor
~
antioxidants in a
~
b, Allair
~
Mr, Graves agreed with Dr, Zom’ccrg that the Landfill waste may include some
“"19
construction debris and other non—ash materials but he said it will not be “highly x'aria I ic
has experience pertbrrning settlement analyses for landfills that are “200 that whereas the
lull,"
Landfill will be 2530 feet tall and the lower load means there is "not a lot of scltlcmcnt."“C The
settlement/’5“
level of variability of wastc will not be enough to "cause appreciable ditt‘crcntiztl
in addition. there will be a protective layer on top of the HDPP. linen so any waste such as
crushctl dmms or construction debris cannot contact the liner and "could not t‘lCellC down and
puncture the liner-3'“2 Therc is a leachatc collection layer on top ofthc EIDPE linen thcn a onc-
foot iayct‘ of sand on the "floor of die landfill" that will sane (is icacltate collection but also
provide some puncture protection; on top ol‘thc sand is a “two-foot protective layer" of “soil or
select waste that will serve as the designated protection layerws" Select waste is waste that has
“7 Tr.al1227.
'3“ '11“, at l266<67t
6‘" T'.
H at lS73V
7‘ ;. (111873774.
1 a: 1874.
“3 TL?“ W43.
“‘3
Tr. at 1045-45
SOAH DOCKET N0.582-18«1960 PROPOSAL FOR DECISION PAGE 129
the “appearance and physical properties more like a soil” so no sharp objects or protrusions are
allowed, 55"
Mr. Graves conducted a “chemical compatibility evaluation to assess whether the
Characteristics of leachate produced by the waste stream would be compatible" with the proposed
HDPE linens” The evaluation was not a laboratory analysis but was based on “multiple lines of
evidence" such as qualitative experience with HDPE; existing literature; known characteristics of
incoming waste; the fact that all waste will be pretreated to LDR standards; a review of leachate
at the Deer Park Facility; and information from actual chemical testing that was done on llDPE
with expected leachate at the Deer Park Facility when that facility was permittedrés" Mr. Graves
said HDPE liner “is by far the industry standard” and is used for low-level radioactive waste,
hazardous and industrial waste, and modern MSW facilities657
1;. The ED
Mr. Vcnkat testified that the long-term settlement and stress analysis of the HDPE liner
as provided in the Applicatinn was based on a conservative approach. The calculated stress was
“well below the amount of strain that can be tolerated" and was “well below the accepted value
for yield strain for high density geomemManes?"153 He said he verified Altair’s calculations by
reviewing published literature and guidance documents, although there is no “regulator[y]
requirement how much [strain] should be [allowedjf’m
55‘ Tr. at 1946

5‘5 11' a1 1874.
55"
Tr. at 1874—73
“7 Tr. at 187445
“5 FD Ex I at 44, TI'. at 1517
55“ ’l‘r, at 1517‘
d. OPIC
OPIC found that the liner design for the Landfill had adequate protection against strain
based on the record evidence, and moreover because there are no regulatory standards for strain
that required Altair to make a demonstration of adequacy?”0 However, OPIC recommended

further investigation of the compatibility of incoming waste with the HDI’E liner. Ol’lC
questioned whether the Deer Park waste and the DuraThenn waste are compatible and found it
would be more protective of human health and the environment if the testing uscd “actual waste
from Altair [sic] in its analysistw‘”
e. ALJs’ Analysis
Altair points out that Darmor’s briefing docs not discuss Dr. Zemberg’s testimony
regarding the HDPE liner and concludes that “Dermot abandoned its position regarding landfill
liner issues that were raised in its [pro-tiled} testimony and extensively during
cross-examinationé62 Whether Dan-nor has abandoned its position, the ALIS lind that
Mr. Graves credibly and persuasively described the protective measures that have been taken to
ensure that the IIDPE liner can withstand the strain of the expected waste and has protection
against chemical incompatibility with waste that will be deposited, The ALJs conclude Altair
met its burden to show that the liner satisfies Commission rule 335.173.
2. GCL Cover
3. Darmor
Dr. Zornberg testified that “problems have been reported” with increases in hydraulic
~
conductivity of
66"
OPK nitial
GCL
Briefat l9.
covers because “moisture fluctuations may facilitate the cation exchange
6“ OPIC initial Briefat 20.

“1 Altair Reply Brief at 29.
SOAII DOCKET NO. 58148—196!) PROPOSAL FOR DECISION PAGE [31
TCEQ DOCKET NO. ZDISAJOIJ-IHW
between hentonite [clay] and infiltrating liquids."663 Bentonites “arc the best possible clay that
we can think of in terms of [low] hydraulic conductivity“ but “they are also the ones that are
subject to the most change.““" He clarified that he was not opining that a GCL cover could not
be used at the Landfill, only that a demonstration had not been made to show tha “cation
exchange with the surrounding soil” would not increase the “hydraulic conductivity of the as-
placed GClr” cover over time.“5 Dr. Zornberg described the Application as “taking for granted
that the use of a GCL will satisfy” Commission rules and applicable law!“
b. Altair
The Application describes the GCL cover as “part of a composite low permeability
barrier that meets or exceeds the regulatory standards for final covers," A two-foot thick
compacted clay liner (CCL) is the requirement for a final cover system‘ but an equivalency
demonstration may be made.M7 Mr. Graves opined that Dr, Zomberg‘s concerns were addressed
because (1) rainwater, which is the most likely source of fluid on the site post-closure, will be
collected by a drainage layer; (2) the GCl. cover will be under a genmembrane cover and will
GCL is usually delivered in a “dry state”
not be in direct contact with the drainage layer; and (3)
and hydrated with water so swells and gets even more impermeable.“SR If a GCL were to be
it
hydrated with the “wrong type of fluid,” that could he a problem, but the GCL will be laid on top
of n CCL and will draw moisture from that CCL in order to hydrate.”
“3 Darmor Ex. 2 a! 53
55‘
Trv at 1265.
65
Trr at 1205-66,
55"
Tr, at 1229,
“’7
ED Ex. I 11MB.
“‘2
Trat 1878411,
“’9
Tr. at 1881‘
SOAH DOCKET 51058248l60 PROPOSAL FOR DE 15105; PAGE 132
TCEQ DOCKET NO. 201870013AIHW
L The El)
The ED rlcrcrrnined that Lhc (iCL cover was appropriate and supported by dcmils in the
Applicalion regarding “ccwcr sysicm components, cover cmsion analysis, landfill sculcmcn: and
strain on the final covcr‘ stability of rho final cover, drainage analy ~ and other performmwc
crircr-ia,""""7 The GCL com met the equivalency demonstration required, in Mr V‘enkal’s
opinion.“
(1. ALJS’ Analysis
As discussed abovci Darinor‘s hrict‘mg dues no! discuss Du Zornbcrg’s [cslimnny
regarding Uh: (lumonslration he recommended for the GCI, cover, The ALls find that
Mr. Graves and Mr Vcnkat provided restimon}; validating that the (SCI, cover satisfies landfill
final wver requirements. Also, the ALIS find that the pomnial issue of cation exchange wilh
surrounding soil that Dr. ion-(berg raised appears to be addressed by the measures Mr. Graves
LlfiSCl€d (such as the gcomcmhmnc uuvcn drainagn system, and hydrmion of the GC L cover).
G. STORMWATER AND LEACHA'I‘E [SS “is”
1. Overview
To satisfy Commission rule 33117301), a landfill must have a runol‘l‘managemem system

ihal will "collccl and cnntml at leasl the walcr volume from active ponions insulting from a
24-hour, lOO—ycar storm" (24/100 Storm). The precipitation from a 24/100 Storm is tho mnoum
of rainfall over 21 24l0111' period from a storm that has a 1% chance of occurring in a given
year}m Cmnmission rulc 335,173(2\)(3) describes the lcachatc collcmiun and removal system
07’:
~~
1‘ 1 “145,47.
~
4" iii) bx. I 9147—43
"73
Nor alruady amassed in annsher section,
‘73
Tr, at 3988.
50A“ DOCKET NO. 582484960 PROPOSAL FOR DECISION PAGE 133
'l‘CEQ DOCKET NO. ZUIS-OOlSVIHW
required for hazardous waste landfillm Tin; parties contested which 24/100 Storm standard to
apply (discusscd below) and whether the Application demonstrated that Altair could pmperly
mating:- the stormwatcr from at 24v’10tl Stnrm along with the leaohate that could he expected {0
result from the storrn (us well as leachate from normal operations}
At the time the Application was filed in 2013. the 24/100 Sionn was estimated to result in
11.94 inches oi'ruin for Co ~ Ldo County (Old 24/100 Storm)” The estimate was based on the
2011 'l‘oxas Department of Transportation Hydraulic Design Manual (TKDOT Manual),

57,<
m
September 2018, about two months before the hearing on the mums, the National Oceanic and
Atmmphcric Administratiun (NCAA) published “Atlas 14,“ a new precipitation alias for Texas
with updated information on expected storm events?“ The new 24/101) Storm rainfall estimate
~~
for Colorado County is just over 14 inches (New 24/100 Stunnim Then: is relationship
betwscn ll
'
rain and leachate generation, as more rain generally results in more lcachatr;m
Altair and the El.) acknnwlcdged that Atlas l4 provides updated inl'omratiun and propose
a special provision bi; added to the Final Draft Permit to inquire Altair to evaluate, the current
Landfill design and stormwatcv management protocol and make no ~ sSdt'y adjustments, Darmor
and Aligned Protestants argue thc Application should be denied because Altair tlid not use the
best information available in design the lnndfilh and also because the purpose of 21 hearing to
allow public input on the Landfill design would be thwarted it"a special permit provision was
deemed an adequate solution. LCRA l‘LLlScS an argument in its closing brief that the Landfill may
be located in a lOOyyear Flood plain. Ol’lC: recommends a stornm atcr discharge permit and u
RCRA storagc permit be required to pmvitle additional environmental protection.
~
5" ED x. l at47—4fi.
‘75
lil) V lai47—48.
~
Te
Tr, at tSSS.
(.71
'1}. at
'79
in at 326'
SOAH DOCKET No. 58248-1960 PROPOSAL FOR DECISION PAGE 1341
TCEQ DOCKET NO. 201 841013-l
As discussed in this PFD, (ho ALls recommend the Application be denied for a number
of deficiencies. The stormwater and leachate management plan is not, however, a deficiency.
As of the time the Application was deemed administratively complete in 2013, Altair had
submitted a stormwater and leachate management plan that could handle the Old 24/ 100 Storm.
Ultimately, the Final Draft Permit requires Altair to prevent the discharge of contaminated
stormwater from the Landfill. 'l‘hat requirement will oblige Altair to revisit its design prior to
construction of the Landfill to ensure that its stormwater and leachate management plan is
adequate based on the best information then available.
2. Aligned Protestants/Dal'mor
Aligned Protestants and Darmor (referred to in this section as Protestants) point out that
in three consecutive years since the Application was filed. Colorado County experienced rainfall
events even exceeding the projection in Atlas 14, and the trend is toward increasingly severe
weather. If the true worst-case scenario is considered, Protestants argue, Altair will be unable to
manage the contaminated stormwater from the New 24/100 Storm as well as leaehate.
2. Severe Rainfall Events, 2015-2017
County Judge Ty Prause is a life-long resident of Colorado County. He is an attorney by
training, but testified in his capacity as the chief administrative officer of the county.679 Several
severe flooding events have affected Colorado County in recent years, according to
Judge Prause. In mid-April 2015, the “Tax Day Flood” resulted from a storm that deposited
approximately 15 inches of rain.‘530 The “Memorial Day Flood" as it is called by local residents,
resulted from rainfall on April 18,2016, of 15 to 1‘) inches.“

l
In 2017, Hurricane Harvey
produced a county-wide average 01'21 to 26 inches.“2 During Hurricane Harvey, County Road
~
579
l at 1415,
6" Tr. at 2425.

65’
Tr. at 1424.
at [425.
(’92 'l‘r.
SOAI]DOCKET NO. 582‘18’1960 PROPOSAL FOR DECISION PAGE 135
TCEQ DOCKET NO. ZOIS-GIHLIHW
(CR) 102, which runs along the western boundary of the Altair property, was inundated, and
CR 101, which intersects CR 102, was “not passable.”683 At the same time, Hwy 71 at the
intersection with [H 10 was under five to six feet of water and was closed for 500 to 600 yards
past the intersection}84 Hurricane Harvey also necessitated the evacuation of 200 people from
the tovm at” Columbus due to the Colorado River overflowing its banks535
Judge Prause testified that the county as a whole suffered the most extensive damage to
its roads during the 2015 Tax Day Flood, but Precinct No. 4, which includes the Site, sustained
636
the must damage during the 2016 Memorial Day Flood and Hurricane Harvey. There were at
least 21 road closures over the three weather events.“7 For some period of time during
Hurricane Harvey, Altair’s facility was “landlocked” and inaccessible by any roads.“ CR 102
was cleared and passable again within 12 to 16 hours, but that was due to local residents who
owned heavy equipment volunteering to assist county officials689 Hwy 71 at the intersection of
1H 10 remained closed for approximately two days?90 Judge Proust: estimated that the roads
surrounding Altair were fully accessible again within about three days“
Protestants also cited Eye ofthe Storm: Report 0/1119 Governor ‘5‘
Commission to Rebuild
Texas (Report), which was generated after Hurricane Harvey?” The Report slates that rainfall
events as severe as Hurricane Harvey had a 1% annual likelihood in the 19903, but that
likelihood has increased to 6% annually in 2017 and could he 18% annually by 2090.693
“3 Tr, at 1425—26.
a“ T , at 1427, 1440.
5“ Tr. at 1428.
"‘6 ’l'r, at 1428.
“7 Tr. al 1428.
5" Tr, at M42.
a” T1, at 1436, 1442-431
59° Tr. at 1443.
9‘”
Tr, at 1444,
m Darmor Ex. 14.
6°
Darmor Ex. 14 at 154-55, Tr, at 1990
SOAIlDOCK E'l‘ NOl 58248—1960 PROPOSAL FOR DECISION PAGE 136
b. Operational Demands of New 24/100 Storm
Given the trend toward an increasing number of severe weather events in the county,
Protestants argue that it will not suffice if the design of the Landfill meets the requirements of
Atlas 14, They argue the Landfill’s stormwater capacity should he even greater in light of
increasing rainfall amounts, and the need to accommodate leachate storage and removal as well.
As designed= the Landfill will include two (tn-site storage tanks capable of holding a total
of 240,000 gallons of liquids94 The tanks were sized based on worst-ease predictions of leachate
generation and sized to handle that capacity.595 Protestants note that MI. Graves testified the
tanks were “sized for leachate only," although they could also he used to hold contaminated
storrnwater. The Application estimates that “peak leachate” produced by three consecutive days
of leachate generation would be 224,391 gallons. Mr, Graves calculated that the worst-case
scenario based on the Old 24/100 Storm was approximately 2 million gallons of contaminated
stormwater.“ If peak leachatc was generated and stored, that would leave space for only
15,000 gallons of stormwater to be pumped into the leaehatc tanks; the rest of the stormwatcr
would have to be managed in some other manner.697
Mrr Weishuhn used the formulae and physical Landfill dimensions in the Application to
develop his own estimate of contaminated s‘rorrnwaterfi” He projected that, based on the cells in
operation at the time ofa storm, the Landfill could hold “Ll million gallons to 2 million gallons”
before there would he “an overlapping or other release of steirmwater.""99 Overtopping would be
caused by a storm that generated around 14 inches of stormwatert Mr. Weishuhn noted that his
calculation shows the “conservative measures" taken by Mrl Graves (discussed below) in
59‘
Tr. at324.
‘95 'l'rl at325,
t t at323-24,
Tr,
‘97
Darmor Reply Briefat t9.
“2 Aligned Protestants Ex. 2 at 090,
59°
Aligned Protestants Ex, 2 21:090.
SOAH DOCKET N0582A18~1960 PROPOSAL FOR DECISION PAGE I3?
TCEQ DOCKET NO 20! fi~0013<lflW
designing the landfill might be almost enough to handle rainfall from the New 24/l00 Storm,
even though the Landfill was designcd to accommodatc only the Old 24/100 Szorm.
hiltzwcishuhn cautioncd‘ howcter, that his calculation ntttdu full use of the custom
~“trcebottrd“7m up brim
-,»74t
Mr. Graves included and that his estimate "tilled the landfill full.
t
In the event of another Hunicane Harvey—sued stumt Mr. Weisltuhn estimated iltt:
Landfill would need to contain 1.3 to 25 million gallons of stutrmwater, depending on the
number of active cells?” To prevent ovcrmpping. hundreds of tanker trucks \vmtld be requivcd
to haul nfi‘ water, l-lowcvcr, Nit",
remove itormwatcr and lcachute by trucking" during

Weishuhn thought it \muld be “difficult
a “catastrophic rain event‘
if
~
nut impossible to
On cross-examination, Mr, Weishuhn agreed that his calunlation assumed every drop of
precipitation would bd held in the active Landfill cells, and no water was calculated as soaking
into tho waste.7m He also assumed that Altair would not start pumping contaminated stortnwzncr
nl‘ cells during the storm and that Altair would not use its lcaclta‘te tanks at all for
out
SKOIInWQECLMS Nonetheless, Mic \Vcishuhn stood by his opinion that the Landfill design was
inadequate with respect to stonnwatcr management planning, Ht: noted that Commission rule
Landfill the precipitation expected for

E.
at least“ the
33517301) requires the to httncllc
24/100 Storm. Already. storm events in ZOl 5 thmttglt 203 7 in Colorado Cttuttty have exceeded
the ~icw24f100 Storm astimate of l4inchcsi therefore, in ltlrl‘vVeislnthn‘s opinion. the
Landfill l‘ttlls short of meeting the “u! Kean!” requirement if it is designed to handle at may! the
~
New 24!] Oil Stormfw’
~
rd means, an a surf e imuoundment, that space is allowed to mttkc sure that contaminated
slormwawr
will not 5p ll otet'due to either “the wavs action lnl'tlze liqttid‘; or became (tithe
" ’l'r
mud
at lSJS‘
~
"J
Fr 11624:}.
~
at
Aligned Ptoli‘siams l uto9l

“3 Aligned Pr‘ctestwtsl at 09L
7“ Tr utt163
Tr. at 1103,
W it. at llul.
SOAH DOCKET NO. 532-19496!) PROPOSAL FOR DECISION PAGE 138
TCEQ DOCKET NO, 2018-0013~IHW
Aligned Protestants criticize the Application for allegedly failing to recognize that Altair
will need a stormwater discharge permit. Aligned Protestants state that, without such a discharge
permit, Altair would be in violation of Commission mle 335.1770), which prohibits

Lin-permitted discharge of hazardous waste or reaction products.”7
3‘ Altair
Mr, Graves testified that—as Mr. Weishuhn’s calculations had shown-tho conservative
practices used in designing stomwater containment at the Landfill already allowed for
containment beyond the 11794 inches expected to be generated by the Old 24/100 Storm.708 He
had not personally quantified how much over the 1194 inches would be contained.709 As safety
measures, the Landfill will have dikes constructed around the active landfill area to help contain
stormwuter and to serve as sidewalls for the waste as the cells are filled,710 There will be the
one-foot freeboard that Mr. Weishuhn mentioned, which is additional storage capacity that
Mr. Graves said would be available to prevent overtopping.7”
Mr, Graves noted that his analysis included an assumption that the largest possible active
Landfill area would be in use during the Old 24/100 Storm, whereas in reality there would be
fewer active areas at any given time and thus more room for runoff.712 He also assumed that the
entire active area would be impervious and that all rain falling on the waste would need to he
pumped out, though the waste would likely absorb some of the liquidm Water that did get
absorbed into the waste would eventually become leachatc, and Mn Graves’s calculations of
~
leachate allowed for that, lie said that meant he was doublecounting by including the
7‘”
Aligned Protestants Initial Brief at 35. This argument is discussed in the ALJs' Analysis, below
7°“
Tr, at [853-54.
7"” 'l‘r, at 1854.
7” Tr, at322.
7” 'l'r‘ £1350.
‘1
Tr at 350‘
"1 T131351.
SOAH DOCKET No.582-18-1960 PROPOSAL FOR DECISION PAGE 139
precipitation as both contaminated stormwater that would not soak into the waste, and as water
that would soak into the waste and become leachate.7M
In addition to the conservative assumptions in the design, Mr. Graves pointed out that
there are operational measures available, Ile explained that a landfill operator might not have
advance warning of “pop up showers,” but major weather events are usually forecast with
enough time to prepare715 Landlill operators regularly engage in “buttoning up the site,” which
means “covering areas to the extent possible to minimize the generation of potentially
contaminated stortnwater.”716 To be prepared, operators also inspect pumps; ensure fuel (such as
diesel) is on hand to run the pumps; remove any standing water into a tank so that landfill cell
space is available; and bring more tank capacity onsite if needed, among other things.717
Operators can also bring in trucks to transport stormwater and leachatc away from the
Landfill. M12 Graves acknowledged that the various “buttoning up" measures he recommended
are not in the Applicationjl‘g lie also agreed that he had not calculated the number of trucks that
might be needed for that task, although both Mr, Weishuhn and Mr. Venkat made rough
estimates of how many tiucks might be needed for that task (Mr. Venkat did so during
crossvexamination at the hearing).719 However, Mr. Graves noted, trucks or tanks that were at
the Landfill in order to assist with handling contaminated stotmwater would not have to leave the
premises immediately. The Landfill would be allowed to hold the liquid without being required
to get a permit for less than 90 days under RCRA regulationsj20 He said it was “beyond the
scope of [his] engineering tasks" for the Application to investigate whether a sufficient number
of tanker trucks was available for Altair to rent, and whether they could be rented on a timely
~
7" TL at 1855-56, 2016_
7‘“ 'l'r
3(1856.
7” Tr, at 1856-57.
7” 'l'r. l856.
at
7‘9
TL at l940-41t
’39
Tr. at 330»
SOAIIDOCKET ND. 58248-1960 PROPOSAL FOR DECISION PAGE I40
TCEQ DOCKET No.2018-0013-1HW
basis)” lie also acknowledged that the Landfill design does not include a staging area or
parking lot for tanker trucks to be accommodatedm
Mr. Graves said that at the very end of the Landfill’s life span7 a small active area. will
remain. and eptions in terms of temporarily collecting storrnwatcr in the waste cells will be more
limited.723 At that point, one practice he has seen is to hollow out some of the waste in the
active area to create a basin that is then lined with a plastic cover; a submersible pump is inserted
7“ The
into the basin to pump water out into a frat; tank or storage tank plastic cover in the
basin should significantly reduce the amount of leachote caused by the stormwater,725 he
'1‘
decision ni’how to manage stormwater at that point would be up to the Landfill operator.
As a practitioner, Mr. Graves said, he reads Commission rulc 335.173(h) to give “a clear
directive on the design storm to use, and that would be the [245'100 Stomi] as the minimum storm
event."726 His experience with prior landfills is that after a permit is obtained and before
construction starts, a construction set of documents is prepared As an engineer, he reviews the
original design to make any updates necessary for the construction set of documents to conform
to new intbrmation and/or new standards that were not available or existing at the time the
permit application was madam
In Altair’s case, Mr. Graves said there were at least two options to revise the Landfill
He could “back often some of [his] conservative assumptions” but he would rather stay
~
design.
“with the design criteria that [he had] establishedflz" The “easiest thing to do would be
7“ Tr. at 334,
’27
Tr.at351~$2.
7” Tr. 812013-14.
7“ Tr. at 2014—!5.
7’5
Trl at 20154
"'16
it at 1853.
72"
Tr. at 1858-59.
7" Tr. at [859—60.
SOAH DOCKET NO 582484960 PROPOSAL FOR DECISION PAGE Ht
TCEQ DOCKET NO 2(ll8-00134UW
probably to raise those bet-ms just a little hing” Mn Graves reiterated that “if new information
comes to light after an application is technically oumplete and goes through this Wearing]
proec ~,
~his “duty. as an engineer, if ifs in the realm ofcnginecring, would be to consider
’ it and
730
evaluate whether the design criteria could he met.“
Auked about the recent flooding,‘ in Colorado County (annually in ZOIS, 2016= and 2017
per Judge l’rause) Mr. Graves said that there is a distinction between a tloocl that the Landfill
must account for, versus road flooding,731 He agreed that Comm ~.sion rule 335.2030) requires
the Commission to consider “active geological processes such as flooding" but explained that the
reference is to Flooding of the type that "CRIMES a stream to change its course” not an ordinary
flood that would involve “just standing water or flowing waterffl'q“
4. The El)
Mr. Venkat verified the computation of stormwntcr Volumes in the Application, but he
recognized there would need to bc a revision 10 account for Atlas

147’“ He testified that he also
reviewed the information in the Application concerning the volume of leachate that could be
generated and confirmed the calculations, but did not independently assesq whether the
assumptions involved in the calculations were reasonablem He said Altair’s assumptions the
stormwater calculations were “conservative” because 100% of stormwutet‘ or rainfall was
"considered to be contaminated“ even though some of the liquid “may have been absorbed by
the waste materials [in] the landfill or may seep through into the leaehatc collection system and
“755
leak detection system,
"19
Tr a! mu,
"'3"
ii: at l9l2.
6"
That l90 ,
733
T , :1! 1907,
7“ Tr. at [348,
7'“
it, at 1355-56.
7‘: 'l't‘,
at 1545-46,
SOAH DOCKET NO 582484960 PROPOSAL FOR DECISION PAGE 142
TCEQ DOCKET NO. 2018:0013-1HW
During cmss‘examinalion. Mr. Venk‘at made mugh estimates ryfhow many trucks would
he needed to manage the worst-ease scenario (based on the 01d 24/100 Storm) of l .5 to 2 million
gallons of cantaininated stonnwatcr. He said if fmc trucks were available (with a capacity of
10:000 gallons each) 200 {we trucks would be needed to remove the contaminated
stormwateru" 1f smaller tanker trucks needed to he used (with a capacity 015,000 gallons each)
Altair would need 400 such trucks.737 Mr, Vcnkm stared that he had reviewed Mr. Weishuhn‘s
testimony and it did not change his opinion that Allair’s stormwatcr management assumplinns
and calculations were sufficient.m
Mr, Venknt acknowledged that there are a number Hf factors he did not independently
investigate, such as whether Hwy 71 would be accessible during 3 24/100 Storm: whether
200 fi‘ac trucks or 400 tanker trucks could be accommodated with other traffic on Hwy 71 during
a storm: or if such trucks would be uvailable to rent.”39 lle pointed out, however, that until the
last twn cells of the Landfill remain (and all other ccllu are filled and closed): the cells
themselves can huld some contaminated stormwater“

0
He also noted~ that cnntaminated
sturmwater may be held onsite fur up to 90 days without having to get a RCRA permit, so Altair
could wait until a storm event was over in case of flooding (tn Hwy 71 or other rnacls,W
Mn Vcnkat said the Application “may need a revision in terms of how they are going m
manage the rainfall within the [Landtillji’ based on {he New 24/100 8101111747 He said revisions
could he made "prior to construction at the lLandfilH facility, if the permit is issued, either
through modification or through amendments to meet those t‘cquircmcnts."m
"W
~
Tr at [:33
~31
Tr (It l.~ ‘.
‘3”
ILDIlX, 12(38-39, “1321510.
m if at 135355.
Wt TY.
~
’rtl I343.
m
~
Tr, at 1356‘ 134:
a")
Trvnt 1. 2703,
m Tr. at l,
SOAH DOCKET N01 SKI-134960 PROPOSAL FOR DECISXON PAGE [43
TCEQ DOCKET NO. 20] 8-DDl3-IHW
5. LCRA
In its closing brief, LCRA states that the Landfill is proposed to be located in an area
“prone to flooding?”4 According to LCRA, the evaluation of whether the Landfill was in a
lOO-year floodplain was “made in, or prior to, 2013,”745 The major storm events described by
J udgc Prause occurred annually from 2015 to 2017, and there “was no additional information or
documentation added to the [A]pp1ication to account for these most recent rain cvcnts,”7""
Noting that Commission rule 305,500 l) prohibits landfill location in a [00-year
floodplain, LCRA then points out that an applicant “may not rely solely on floodplain maps
prepared by the Federal Emergency Management Agency [liEMA] or a successor agency to

determine whether a hazardous waste landfill .is subject to such an inundationrfla7 LCRA
1 .
contends that Atlas 14 “directly affects and impacts the design of the proposed [Llandfill to
address stormwater impacts and the [24/100 Stormlr”74s
LCRA recognizes that Altair was entitled to rely on the rules in effect when it completed
its Application in 2013, and that the publication of Atlas 14 less than two months before the
hearing on the merits is a “very unique situation,”749 However, LCRA argues that the absence of
“any formal evaluation of the impact of this new data on the landfill design“ is a fatal flaw. The
hearing on the merits “could have been postponed in order to provide [Altair and other parties]
with an opportunity to address the new data,mso In the alternative, and “at a minimum,” LCRA
~
urges remand of the Application with a directive to Altair to make any revisions necessary as a
7“ LCRA Reply Brief at 9.

7‘5 LCRA Initial Briefat 14.
7°”
LCRA lnitial Briefat 14.
7‘7 LCRA Reply Brief at It), LCRA cited Commission rule 350.5001), but it appears the correct citation is to
rule 305.500 l).
7" LCRA Reply Eriefat 11
l" LCRA Reply Bricfat 12

7‘"
LCKA Reply Bricfat 12
SOAH DOCKET \‘0. 58248-1960 PROPOSAL FOR DECISION PAGE 144
TCEQ DOCKET Not lOlS—(JUILIHW
result ofAtlas Mr and contends the parties should then be given an npportunity to question Altair
"751
on the “revisxms and the potential impacts to the surrounding aren and the environment.
6. OPIC
OPIC finds that the possibility of bringing in {me trucks in tanker trucks to address
contaminated stennwmer during a majer storm event is unrealistic. without mare investigation.
Ol’lC conimea that Altair “failed to tbomughiy evaluate the availability of said trucks. the
accessibility
onsite leaehate containment storage,

~
of the mad, the lack at truck staging area, and the potential need fer additional
As one possible solumn, OPIC recommends that Altair
obtain n RCRA storage permit to allow for the potential that contaminated stormwater will need
to be stored at the Landfill for more than 90 days,m OPIC also “agrees with Mr, Graves on the
need for a stormw ~

y t *r discharge permit
“734
finally, OPIC agrees with Mr, Weishuhn‘s interpretation that Commission rule
335417301) requires "tit least" designing fur the 24'100 Storm, and in this case designing more
than anticipated for the New 24/‘l00 Storm, given thnt the l4 inches predicted by Atlas 14 has
already been exceeded by recent stirring in Colorado County?” As “a practical matter and
considering recent trends, OPlLl iinds a need for extra capacity beyond 14
inches?“a
7. ALJS’ Analysis
The ALIS begin by noting that there are [we matters that appear to be misunderstandings
rather than contested issues requiring analysis. First, there is the issue efstormwater discharge
15"
LCRA Repl) Briefat l2.
7” OPlC initial Briefat 2552b;
"53
OPlC initial liriefut 26.
75"
()PlC 26. The discharge permitts) required are discussed in the ALJS‘ Analysis, below.
~
initial [iricfat
~
“5 02> , initial Brief 32.21-t
7"“
0P . nilial Brief at ’23.
TCEQ DOCKET NO. 201841013-IIIW
permits. The ALJs agree with Altair that Aligned Protestants are apparently using “stonnwater
discharge permit” to refer to the discharge of both clean and contaminated stormwateri
Mr. Graves distinguished during the hearing between “clean stormwater" that has not come into
contact with waste and “potentially contaminated stonnwatcr’” that makes contact with an active
cell,”7 Altair clarifies in its closing brief that it will obtain the proper permit to discharge clean
srormwater.758 The El) states that whether Altair “is required to, has, or will seek authori/ration
to discharge stormwater or contaminated stormwater . . _ is outside the scope oi'thc requirements
of, and the Executive Director’s review of, an application for a hamrdous waste permit.”759 The
All see no basis to find fault with Altair‘s proposed discharge pen-nit For clean stormwatcr.
Second, the ALJs find that LCRA’s argument regarding the lOO-ycar floodplain appears
to conflate the requirements concerning floodplains with the requirements concerning the
24/100 Storm. While Commission rule 305.5001) cautions against solely relying on FEMA
floodplain maps, the record evidence indicates that both Mr. Graves and Mr. Venkat reviewed
floodplain data and found the proposed Landfill location is 22 feet higher than the nearest
streams, which are over a mile away. it appears that LCRA is using the New 24/100 Storm
predictions and Judge Prause‘s testimony regarding road flooding to assert that there is a
lOO-ycar floodplain issue The ALJs recognize LCRA’s concerns regarding stormwater
management in light of Atlas l4. However? the [this agree with Altair that there is no evidence
to suggest that “recent rainfall events could have possibly changed the lDO-ycar floodplain given
the differential of one mile and 22 feet.”760 Although LCRA suggested the hearing should have
been continued, no party moved for a continuance on the basis of the publication ofAtlas 14,
Setting asidc those issues, the ALJS note Altair generally accepts that Atlas 14 must be
evaluated and its impact on the Landfill design must be addressed. Altair proposes that the
~
Commission adopt the ED‘s suggestion of a
757
Tr, at 585-86, 591,
special provision in the Final Draft Permit
75’
Altair Reply Brief at 35.
75"
ED Reply Briefat 10-1].
75"
Altair Reply Brief at 36.
SOAH DOCKET NO. 582-18~]960 PROPOSAL FOR DECISION PAGE 146
TCEQ DOCKET NO. 2018—0013—lHW
“requiring that Altair review the new NOAA [Atlas 14 prediction of the New 24/100 Storm] for
Colorado County . . . and submit a permit modification, if needed, to authorize design
changes.Mm TCEQ’s permit modification process would allow Altair to submit its proposed
modification to the ED for approval subject to a 60-day public comment period.762 A permit
amendment will in some circumstances require a contested case hearing?“
Darmor opposes the permit modification because it would allow “alteration of the
proposed design and operation ot‘thc [Landfill] afler pennit issuance,”764 In Dannor’s View, this
“approach renders the public participation process for permitting entirely meaningless” because
it “serves as a magic wand by which the Commission can issue a permit despite any deficiency
revealed by that process."765 Darmor asserts that 'l‘Cl would be in violation of its own rules if
it ignored an obvious deficiency and issued the permit “on the assumption that it will be
corrected prior to construction.”706 The issue of the magnitude of the 24/100 Storm is a
question of tact, not law, to be determined based on the evidence adduced in the hearing
process."767
Aligned Protestants echo Darmor’s position, stating that the ED‘s recommendation of a
permit provision) to address the New 24/!00 Storm is an “apparent recognition of inadequacy”
that would “allow an application expected to be insufficient to avoid the discharge of hazardous
waste stormwatcrs to be issued on a ‘trial basis.m Aligned Protestants reiterate that Altair has
not met, or committed to meet, the “at least” provision of Commission rule 335.173 given that
~
the New 24/ 100 Storm prediction has already been exceeded three times in recent years.
l“ Altair Reply Brief at 33c

7‘“
See 30 Tex. Admin. Code § 305.69.
75"
See 30 Texas Administrative Code § 305.62 and the Commission’s application processing rules in chapter 281
7‘“
Dannor Reply Briefat 21.
755
Darmor Reply Brief at 21.
7“ Damior initial Brief at 46‘
“’7
Darmor Reply Brief at 21.
SOAH DOCKET NO. 582-126-1960 FRONTSAL FOR DECISION PAGE 147
TCEQ DOCKET NO ZOlK—OOlS-IHW
The ALIS note that Aligned l’rotestants‘ witness (Mr. Weislntlinl provided calculations
of the Landfill seems more than adequate to handle the
~
showing that the current design
contaminated stonnw '

and leaeliate that may result hour the Old 24/100 Stornit Despite the
magnitude of the new rainfall projections in Atlas l4 and the recent major storms in Colorado
County» the ALIS do not tind a basis on which the Applications stomtwatcr and leoclmte
plan
can be deemed deficient. If a date certain for completeness ol‘an application cannot he imposed,
an applicant will be hard—pressed to get a hearing on its application, Changes in law and/or new
information would continually delay an application from being deemed complete. The applicant
would be denied the opportunity to have the application judged on its merits.
Allan‘s stormwater and leochate management plan is adequate to manage the
the requirements that applied at the time the Application
~
Old 24l100 Storm and therefore meets
was deemed comp However, Altair does not thereby have a “free p288" to discharge
stormwater if it implements the landfill as designed. without taking; account of new information.
The Final Draft Permit requires Altair to "prevent any dischargei ot‘any waste or runoff ol'wnstc
~'56 8 As Mr. Graves testified, it is the standard of
contaminated stormwoter from permitted
~
units,
practice for permitt projects to be reviewed prior to construction to assess whether new
information requires adjustment: in design. Depending on the magnitude of the design
modification or amendment required. the public and interested parties may have opportunity to
comment or to participate in '4 formal hearing. The Al find. on the evidence presented. that
the storniwater and leachate management plan is sufficient.
H. TRAFFIC AND TRANSPORTATION REQUIREMENTS7M
The Commission has several rules regarding traffic and transportation related to a
proposed hazardous waste landfill: (l) disclosure requiremenls for information on the potential
exposure of the public hazardous waste releases associated with transportation?”

~
for to
9:11 is.
7"”
Not altcncly discussed to another section
1?“
30 'lex Admin, Code 9‘
3El5.50{a)(8). 40 C ER. § 270.106}.
SOAIIDOCKET N0.SSZA18-1960 PROPOSAL FOR DECISION PAGE I48
TCEQ DOCKET NO ZOIR-DOIS-HIW
(2) consideration of transportation risks in assessing land use eompatibilityfl" and (3) disclosure
requirements for routes of travel to be used for transponation of hazardous waste to and from the
facility,772 For a commercial facility, additional requirements applym
Commission rule 305.S()(a)(8) states that a Part B permit application for a facility that
stores, processes, or disposes of hazardous waste in landfill “must be accompanied by
information , _ . on the potential for the public to be exposed to hazardous wastes or hazardous
constituents through releases related to the unit.” The rule specifies that:
At a minimum, such information must address:
(A) reasonably foreseeable potential releases from both normal operations and
accidents at the unit, including releases associated with transportation to or
~
from the unit;
(B) the poleminl palm ul'hunmn (:q‘mtlrc to hazardous wastes or

eomliuicnls resulting from Llouum-urct'l releases; and
(C) the potential magnitude and nature of the human exposure resulting from
such releases.
Commission mle 335.180 states that, at a minimum, the Commission shall consider,
among other things, “the risks associated With the transportation of hazardous waste to the
facility" in determining whether a new hazardous waste management facility is compatible with
local land use, Commission rule 305.50(a)(10)(l)) states that an application to store, process, or
dispose of hazardous waste at a new hazardous waste management facility must contain:
[Djescriptions ol‘ the major routes of travel in the vicinity ofthe facility to be used
for the transportation of hazardous waste to and from the facility, together with a
map showing the land—use patterns, covering at least a live—mile radius from the
boundaries ofthe facility[ .1
~
7“ 30 Tex. Admin. Code § 335,180.
7"-
3o Tex, Admin, Code § 305.50(a)(lO)(D).
7“ 30 Tex, Admin, Code §§ 305.50ta)(l2); 335,182.
NOAH DOCKET NO, 5212-1871960 PROPOSAL FOR DECISION PAGE 149
TCEQ DOCKET NO. 2018-0013~IIIW
1. Altair
Altair contends that it has complied with all of the Commission rules relating to
transportation of waste, including requirements related to emergency response.
a. Transportation Exposure Analysis (Commission rule 305.50(a)(8))
Altair explains that the Commission’s instructions to Part B of the Application state that
information on the potential for the public to be exposed to hazardous waste through releases
related to the landfill is required to be submitted with an application, but that it is separate from
the application)” Mr. Graves testified that an exposure information report was prepared under
his supervision and included in the Application.775 He stated that the report briefly describes the
facility and surrounding area, general operating procedures, and waste characteristics; and that he
referred to EPA’s July 3, 1985 Permit Applicants’ Guidance Manual for Exposure Information
Requirements under RCRA Section 3019 (EPA Guidance on Exposure) for guidance in
preparing it.“ The EPA Guidance on Exposure states:
Transportation Information
Accidents or leaks during the transportation of wastes at the facility may result in
human exposure. The applicant must submit information concerning transport
on-site and in the immediate vicinity (e,g,, on access roads), as defined below.
0 Provide general descriptions (including capacity) of the types of vehicles

and containers used to transport hazardous waste to and within the facility.
~
U Identify normal transport routes for hazardous waste into the site and
within a distance of one mile ot'the facility entries.
Altair Ex, 2-2 at 001071;

17‘
Tr. at 455.
775
Altair Exs. 2 at 000920; 2-2 at 003844-86
77"
Altair Ext 2 at 000920.
SOAH DOCKET V0.582-18—1960 PROPOSAL FOR DECISION PAGE 150
TCEQ DOCKET N07 ZUIB-OOlS-IHW
0 Describe procodures for clean-up of spills or

~'
li\‘1 resulting {rent the

transport of waste on~site (or in the immediate Vii. iity of the facility) and
unloading/loading activities on-sitc.777
For the exposure analysis, Mr, Graves explained that he did not evaluate potential
exposure during transportation of waste to the Facility, only the potential exposure from releases
during on-sitc transportation at the facility”; Mr, Graves testified that he interpreted the
regulations to only require an exposure analysis for on»site transportation because the regulations
use the phrase “to the unit?”179 Mr. Graves acknowledged that regulations do not specify any
distance limitation, but he explained that the EPA Guidance on Exposure does suggest
appropriate distances.”0
b. Transportation Risks in Assessing Land Use Compatibility

(Commission rule 335.180) and Transportation Routes (Commission
rule 305.50(a)(10)(D))
Mr, Graves testified that the engineering report in the Application includes a discussion
on traffic patterns of incoming waste vehicles and the general characteristics of the roads in the
site vicinity) which allowed the ED to assess compatibility of the Altair Facility with local land
use?“ Mri Graves did not locate any land use plans within a five-mile radius of the Altair
Facilityf’g2
Defending the decision to only evaluate local land use within five miles of the Altair
Facility, Altair cites to the preamble to Commission rule 335.180 wherein in response to a
comment that land-use consideration be limited to a one-mile or fiyevmile radius, the agency
stated:
“7 Altair Ext 8 at 2-9 through 2- l O,
7" 'l‘r, 211459-63.

7” TL at461-64.
7"“
Tr. 31456,
7“ Altair Ext 2 at 000877.
m Altair Ex, 2 at 000860-61.

SOAH DOCKET ML 58248-19110 PROPOSAL FOR DECISION PAGE 151
TCEQ DOCKET NU. ZOWellOB-iHW
In actual practicor the impact ot'zi proposed facility on local land use is likely to
vary. depending on the nature of the land use, the nature of the proposed
wasre
managerttout operations at the facility, and the size of the ihcilil'~ At thi‘ ime,
[the Commi iiort] considers it more prudent to rotain the ah ~~~~_
Llii ~
pertinent factors without limiting its consideration in an arbitrarily cstal1l13hod

distancoj“
Altair asserts that because the Commission has the discretion to assess the impact of a proposed
facility on local land use without it distance limitation. in this case, because there are no local
land use plans within five miles, a live-tulle radius for the Altair Facility should be
sufficient?“
Likewiso Altair asserts that, in compliance with Commission ~

rule 305.. 0i ah 1 (MD), the
Application shows the major transportation route to he used for the transportation of hazardous
waste 2‘. distance of five miles out from the Altair Facility."its
Mr. Niclsctt tCSliiiL‘ti that there will be approximately ten commercial trucks carrying
waste from the Deer Park Facility

clay once they are cmptic
covering the hayardous waste with a tam?37
~ .
to die Altair Facility
Ht: described the trucks as
The
scvcn days
having a
a. week. and departing each
trailer
trucks will travel approximately

with i: roll~olT bin
ll)t) miles
from the Deer Park Facility rhmugh Houston heading west on iii 10 to Hwy 71 heading south,
crossing over the Colorado River: before reaching the Altair ilacili ~ 1735 No traffic or impact
analysis was done to determine how the public roadways in the Houston area would be
impacted?” Additionally; there will be trucks brought in on a periodic basis to haul ot'l‘
accumulated lcacltate and contaminated stormwatet from the Altair l‘rtcility.M The
contaminated stomtwatcr and lcztchatc would bl: transported back the ion miles through Houston
~ Darrrzor Lx. 2P 312 U6 'l‘cxv Reg. {7063. 606!) (October 25, l991))v
7“ Altair initial Briefat 55.
“‘5 Al‘mr Ex. 22 a: 001*“.
7‘“
Tr. at 191, blitair ~~~o-ma . ttt00|539.
7‘“
Tr at l9i,
‘3‘ ’lt' at51~52. Nil-9L

““5 ’l‘i‘,
at l9079l.
’9‘
Tr. at 62.
SOAH DOCKET V0.582-18-1960 PROPOSAL FOR DECISION PAGE 152
TCEQ DOCKET NO. 2018700134HW
to the Deer Park Facility for treatment Via bulk liquid tarikersfgl The Application provides that
if a will were to occur during the transportation of lea'eltfltc, the transportation company will
notify a hannat response team.”2 Altair points out that the transportation of hazardous \taste is
regulated by the C onimissiont EPA, and US Department of Transportation (DOT); and that these
wastei'fi“
regulatory requirements are intended to mitigate risks from transportation ot‘ltazardeus
er Burden on Public Roadways (Commission rule 305.50(a)(12)) and

Emergency Response Capabilities (Comm'msion rule 335.182)
Mr. Graves explained that since the application is for a noncommercial facility, Altair
was not required to address whether a burden would be imposed on public roadways by vehicles
traveling to and from the facility. not provide documentation from the agencies who regulate and
maintain the road regarding loads placed on the roadway

~~4 However, the Application notes
that ilwy 7] has no load restrictions, and that the Altair Facility will contribute 0.2% of the total
average daily traffic volume on Hwy 71.795 Mr. (have also explained that Altair did not provide
transportation or emergency-response reiated information or demonstrations because they are
seeking a pezmit for a noncommercial facility, which would not require those demonstrations.”
2. The ED
[‘he ED“: position is that the Application includes the information required by
Commission rule 305.50(a)(ltl)tD) and 40 CPR. § 270.l4(b)(10) regarding off—site roadways
and waste transportation, Disagreeing that Commission rule 305,50(a)(2<} requires submittal of
intorm‘atimi on exposure during transportation over the public roadways to or from the facility;
~ ~
the El) states that the rule requires information on exposure related to “the unttt including
7" .272 31001539.
~
Tr. at 64; .r’\l ~
~
.
7” Altair lSV. Z~2 at 001539.

7‘“
Altairlflx 2 atOtlt)878.
m
ms ‘Z-Z at001539.
7““
Altair Ex, 2 at 00086]; 30 Tex. Admin. Code § 3055000112)
SOAllDOCKET NO 582484960 PROPOSAL FOR DECISION PAGE 153
releases associated with transportation to or from the unit.”797 ’lhe ED further identifies that
security, accidents, spills, and emergencies in the course of transportation of waste over public
roadways are addressed in the US. Department ot‘Transportatiun regulau'ons.798
3. Darmor
Darmor contends that Altair has not sufficiently addressed transportation risks associated
with the Altair Facility, the potential for the public to be exposed to hazardous waste in
association with the transportation of waste to the Altair Facility, nor the burden that the
transportation of waste to the Altair Faculty will have on the public roadways.
a. Transportation Exposure Analysis (Commission rulc 305.50(a)(8))
Specifically, Darmor points to Altair’s limitation of its exposure analysis to consideration
of on-site spills. Dr, Zornberg testified that the exposure analysis required by Commission rule
305.50(a)(8) must address, at a minimum, “reasonably foreseeable potential releases from both
normal operations and accidents at the unit, including releases associated with transportation to
or ii‘om the unitim“
Dr, Zornbcrg opined that the exposure report contained in the Application does not lay
out a transportation risk assessment. While the exposure report under Commission rule
305.50(a)(8) does not need to be as detailed as the exposure analysis under

Commission rule
335. l 80(1)(C), he expressed that it does need to give the Commission an idea of the additional
risks the permit will bring to the public, In this case, he explained, there are transportation risks
for over 100 miles of roadway between the Deer Park Facility and the Altair Facility, The route
~
Bayou four times, approaches Memorial Park, crosses the Brazos and
~
crosses the But‘faio
Colorado Rivers, passes by multiple schools, and crosses numerous highways tbl'm<to-markct,
791
ED Reply Brief at 11-12 (citing 30 Tax. Admin. Code 305.50(a)(8))r
7“ 49 C.F.R, Parts 100-185.
7” Darmor Ex. 2 at 40-41.

SOAH DOCK \'()t 582-113-1960
l’ PROPOSAL FOR DECISION PAC-F. 154
TCEQ DOCKET NO. 2018—0013—l
and county minis. Dr, Zornhcrg opined that each trip could expose 100,000 people scattered
missing
across four counties to hu'lztrdous material dusts that could escape through a defective or
ttn‘p covering the waste in tmnsit or less-comtttonly. Via a truck roll-over in transit. Despitc this
scope ot‘it‘npach the exposure information report does not address these risks tit all. and almost
exclusively limits its discussion to operations at the Altair Facility itself,£00 Darnior argues that
the limited evaluation by Altttir fails to encompass the full scope of information required by
Commission rule 305 . 50(a)(8‘i.
bi 'l‘ransportatitm Risks in Assessing Land Use Compatibility

(Commission rule 335.180)
Deirmor contends that Altair has iiiilod to demonstrate that the transportation risks
associated with the Altair Facility are compatible with local [and uses. Durtnor emphasizes
Mr, Niolsen‘s testimony that no trtmspurtntim tislt assessmcnt was done. and highlights the
distance from the Deer Park Facility to the Altair Facility, of approximately lOO miles
that
crosses through Houston and over rivers; the volume of truck: carrying hazardous waste cnch
day along ihis palh with nothing more than u Imp; and the unknown nomher of tanker trucks that
will travel the same route in reverse carrying leachatc and contaminated storniwmer back to the
Deer Park Facility.Sm Additionally. Mr. Graves testified that he did not know what parts ofthe
state themobile TDL's would he located, and therefore did not evaluate what roadways those
trucks might use to touch the Altair liticilit)
Ell?
[he only transportation analysis that was
performed at all, was that ol‘ ti roadway analysis of the live—mile radius around the Snow
Dr. Zm‘nherg testified that Commission tule 335.!80(1)(C) requires the Commission to
consider, {it n minimum . , , the risks associated with the transportation of hu7nrdous waste to
the facility, . t
.“W‘ The exposure analysis requirement for transportation risks is not bound by
‘5'”
Dunno“ Ex, 2 at 43-44.
3“?
Durmor Bi tet’ut 502
~
Initial
“1
Dnrmor Ex. 3 at 24.
“7
Altair Ex ,~2nt00l53 ,tit338.
'
“'4
DnrtviorEx 2 at ~11.
SOAH DOCKET NO. 531-18-1960 PROPOSAL FOR DEClSlON PACE ISS
T(‘I)Q DOC ~ ET \0.10|B—l)0l3—IHW
any distance limitationm—“thc requirement applies to risks arising anywhere wastes in transit to
the landfill might reasonably be expected to be

t‘oniid.“3“‘g He explained tha: while the
Commission has not defined what area constitutes the “local” area: the Commission‘s
predecessor agency expressly declined to limit the local area to a tivc'mile rudins around the
landfill site.”
Dartmr stresses that in considering the risks associated with transportation

ot‘hazardons
waste to the Altair Facility on local land use. Altair has construed the area of consideration
ttvu
narrowly. Looking at the intention ot‘ the predecessor agency when promulgating this rule,
adopt a distance limitation explaining that “most

Damion stresses that the agency refused to it is
prudent to retain the ability to assess all pertinent factors without limiting i . . consideration to an
arbitrarily established tlistartcet”8(’7 Dnrmor argues that as a result of this circumscribed distance,
and the lack of information regarding transportation routes to be used. several critical
transportation risks associated with the Altair Facility were simply ignored,
Harmer asserts that the evaluation oi~ transportation risks is a necessary element
of the
required evaluation ot’tiic impacts of a facility on local land use; yet no analysis of transportation
risks was performed, and no expert opined as to the compatibility of the Altair Facility on local
land usesW Specifically. Dannur identifies that Altair relied on ('ieosyntcc to address the land
use requirements; however, Mr. Graves testified that he believed it was the Commission‘s duty
to evaluate land use compatibility, 50 he did not make his own land use compatibility
determination?” Mr. Venkat. however, testified that he merely looketl at what Altair provided.
and did not perform his own independent evaluation of land use compatibility}‘C ltt shun,
Damior states, each expert asserted that someone else had evaluated land use umnpatihility; yet
“’3
Darmnt Ex, 2 at Al.
“’3 Dame: lixs ZzztdlA ~“‘ 2P(l(1’l'e;<t Reg/ (7065, 6066 (October 25, HWY].
Darmor 2P 2 (lb Tex, Reg. (1065, 6066 (October 25, 891)),
~
‘07 F\{, 1“
I) nior it‘iiittl Briefs! 4”.
£|t213,475.
~
Ir.
3” Fr.atl$’12.
SHAH DOCKET N0.582~184960 PROPOSAL FOR DECISION PAGE 156
TCEQ DOCKET NO. 20]8-0013~1HW
no witness opined that the safety risks created by the transportation of lia7ard0us waste
associated with the Altair Facility are compatible with local land use.
e. Burden on Public Roadways (Commission rule 305.50(8)(12))
Dannor highlights that a commercial facility is required to address the burden imposed
by a facility on pitblie roadways: however, because Altair considers itself a noncommercial
facility, it did nothing to meet that requirement.”
Aligned Protestants expressed coneem over the threat to public safety associated with the
transponation risks of the Altair Facility Specifically; they stress that the Application is based
on an understatement of the number of trucks that will be routed in and out of the Altair Facility:
Mix Nielsen testified that there will be ten trucks arriving and ten [tucks leaving the Altair
Facility, ~even (lays a weekm in addition, there will be tanker trucks going to and from to
remove the ieachate and accumulated contaminated stormwaler as needed” The hazardous
waste the trucks would carry will he a granular material that is characteristically to ‘e, and there
is the potential for the material to blow out of the bins in transport” Mi: Nielsen also testified
that the exposure potential from the hamrdous waste blowing out of the bins during
transportation as it travels on roadways through Houston was not evaluated in any way,815 He
described the path that the trucks vill take each day as going over the Colorado River. and
agreed that the potential exists for a truck to tip over and spill the hazardous waste into the
"l Dunner initial Bi‘tel'attig: 30 Tex Admin, Code § 335.182

“2 TE: atél, lql.
3" Tr. 3:61-61
'4
Ti'. at 191793.
‘" T): m 192‘
TCEQ DOCKET NO, 2018-0013-IHW
river.m He stated that Altair did not do an evaluation of the potential exposure from a spill into
the Colorado River.“7
Colorado County Emergency Management Coordinator Charles Rogers is responsible for
developing and maintaining the emergency management plan for Colorado County and
responding to all emergencies, among other duties.m Mr. Rogers described the first responder
resources available in Colorado County and stated that they are not trained to respond to
hazardous waste related emergencies or hazardous waste spills on roadwaysm Altair has not
contacted him regarding coordinating emergency response activities that may arise from the
Altair Facility.
320
Mr. Rogers opined that the potential threat to public safety, response
personnel, and the public is beyond the capability for Colorado County to adequately respondw
In addition, Aligned Protestants point to the testimony of Judge Frame and Mr. Rogers,
describing the traffic hazards associated with ll-l 10 and Hwy 71. Judge Prause testified that
there are a large number of gravel trucks, and other mixed traffic, such that he estimated that
accidents occur on lit 10 and Hwy 7t smith of 1H 10 hi-monthly.m Of particular concern to
Aligned Protestants is the that fact that the limited uaffie study performed by ML Graves did not
even reach the critical intersection of 1H 10 and Hwy 7'1.$23 Mr, Rogers testified that Hwy 71
has a history of serious fatality accidents, the shoulders are unimproved, and that both 1H It) and
Hwy and the main route for emergency crews to
~
71 are designated hurricane evacuation routes
access various parts of the countym Mrr Rogers also stated that there are no immediate
resources capable of intervening to mitigate any accident involving the type of loads to be sent to
“6 Tr. at 195'
“V
Tr. at I96,
’3"
Aligned Protestants Ex. 3 at 109
“7 Aligned Protestants Ex. 3 at 110‘
~
an
Aligned Protestants Ex. 3 at 111‘
82 Aligned Protestant. 3 at l [2.
“21
Aligned Protestants Ex. 4 at l 19.
32
Aligned Protestants initial Brief at 37
5” Aligned Protestants Ex, 3 at lll
SOAH DOCKET NO. 582-123—1960 PROPOSAL FOR DECISION PAGE ISS
the Altair Facility—the emergency responders are not trained in how to respond to these types of
loads in the event of an accident.” Altair has not arranged to install or fund the installation of
any traffic control devices to regulate truck traffic to or from the Altair Facility.826 For these
reasons, Aligned Protestants assert that the traffic hazards have been insufficiently analyzed.
51 LCRA
6. OPIC
OPIC recognizes that in this case, one of the issues is whether the language
“transportation to or from the unit" in Commission rule 305150(a)(8) is limited to on-site
transportation, or if it includes the route from the Deer Park Facility and DuraThenn Facility to
the Altair Facility. OPIC takes the position that the language does not place any distance
limitation For exposure analysis, As support, OPlC cites to the testimony of Mr. Graves, wherein
he agrees that there is nothing in the state or federal rules imposing a distance limitation for an
exposure analysis.u7 Additionally, OPIC explains that a “unit” is one of the places where the
waste is moved after it leaves the Deer Park Facility or Dura'l‘herm Facility and is accepted by
the Altair Facility. Therefore, once the waste leaves the Deer Park Facility or DuraTlierm
Facility in transit to the Altair Facility for disposal, the waste is considered as being transported
to the unit,m Therefore, Ol’IC takes the position that the exposure analysis from the
transportation of waste to or from the unit cannot be limited to just an on—site evaluation, but
should include the transportation from the Deer Park Facility and DuraTherm Facility.
“25
Aligned Pretes "is ~ /
~
.3a1 111.
‘26
Aligned Protestants Ex. 3 at 111.
Tr, at 456.
"'
m Tr. at 461-62.
SOAH DOCKET NO. SSZ~1871960 PROPOSAL FOR DECISION PAGE 159
TCEQ DOCKET NO. 2018~0013-1HW
Because there is no information in the record surgesting any evaluation of the
transportation between the Deer Park Facility or DuraTherni Facility to the Altair Facility; no
analysis of the travel within the City of Houston for potential exposure; and no information on
proximity of schools, day care facilities, and sensitive receptors to the transportation routes,
OPIC concludes that the exposure information report does not meet the requirements of
Commission rule 30550000?)829
Looking at Commission rule 305,50(a)(10), OI‘IC states that even though the rule
describes a five-mile minimum, it is not an appropriate distance limitation in this case. This case
concerns transportation of hazardous waste for approximately 100 miles. Given that the Site is
seven miles south of Columbus, OPIC stresses that Aitair’s consideration of traffic should have
included the intersection of 1H 10 and Hwy 71 in Columbus, where the trucks will exit 1H 10 and
proceed south on Hwy 71, Considering the route and the potential impact on traffic, the traffic
analysis under Commission rule 305.50(a)(10)(D) should, at a minimum, include data from the
intersection of [H 10 and Hwy 71, seven miles from the Sitem
Additionally) ()PIC recommends that if the pennit is to be granted, the Commission rules
applicable to commercial facilities with regard to the burden on the public roadways and a
demonstration that emergency responses are available, he required ofAltair,“
7. ALB” Analysis
The ALJs find that Altair has not sutficiently addressed the potential for the public to be
exposed to hazardous waste from the transportation of waste to the Altair Facility, nor the burden
that the transportation of waste to the Altair Faculty will have on the public roadways.
Al
~
Additionally, the find that Altair should be required to make demonstrations under
Commission rules 305.50(a)(l2) and 335182 because it is a commercial facilityi
“9 OPIC Initial Brief at 28.
“‘7
OPEC initial Brief at 28-29,
W OPIC initial Briefal 29; 3D'l‘ex, Admin. Code 305.50(a)(12), 3354182
TCEQ DOCKET NO. 2018-0013~IHW
a. Transportation Exposure Analysis (Commission rule 305.50(a)(8))
Commission rule 305,50(a)(8) requires Altair to provide information on the potential for
the public to be exposed to hamrdous wastes; and specifies information thatt, at a minimum, must
be included. Altair interpreted the rule as requiring less than the minimum required by rule, and
only provided information regarding the potential for spills occurring on~sitcr Looking at the
rule, it requires at a minimum, information on:
(A) reasonably foreseeable potential releases from both normal operations and
accidents at the unit, including releases associated with transportation to or
from the unit;
(B) the potential pathways of human exposure to hazardous wastes or

constituents resulting from documented releases; and
(C) the potential magnitude and nature of the human exposure resulting from
such releases.
The evidence shows that once the waste leaves the Deer Park Facility or DuraTherm Facility in
transit to the Altair Facility for disposal: the waste is considered as being transported to the
unit}m The route crosses the Buffalo Bayou four times, approaches Memorial Park, crosses the
Brazos and Colorado Rivers, passes by multiple schools, and crosses numerous highways, farm-
to—matket, and county roads, Dr. Zomberg opined that each trip could expose 100,000 people
scattered across four counties to hazardous material dusts that could escape through a defective
or missing tarp covering the waste in transit, or less-commonly, Via a truck roll-over in transit.
Despite this scope of impact, the exposure information report does not address theSe risks at
311,333
The ALIS find that the language “transportation to or from the unit” as used in
Commission rule 305.50(a)(8) is not limited to on-sitc transportation —in this case it includes the
route from the Decr Park Facility and DuraThcrm Facility to the Altair Facility. This
“1 Tr. at 461<62.
“‘3
Donner Ex. 2 at 44V
SOAH DOCKET NO. 582484960 PROPOSAL FOR DECISION PAGE l61
interpretation is supported by the EPA Guidance on Exposure, which describes the information
that should be included in the exposure analysis as information on the transportation of
hazardous waste “to and within the facility.”m Because Altair limited its exposure analysis to
an on-site analysis, Altair has not met its burden to demonstrate that the Application complies
with Commission rule 305»50(a)(8)r
h. Transportation Risks in Assessing Land Use Compatibility

(Commission rule 335.180)
Under Commission rule 335.180, the Commission is required to consider, “the risks
associated with the transportation of hazardous waste to the facility" in determining whether a
new hazardous Waste management facility is compatible with local land use. The evidence
demonstrates that in considering the risks associated with transportation of hazardous waste to
the Altair Facility on local land use, Altair has construed the area of consideration too narrowly.
Limiting an analysis to a five-mile radius is inconsistent with the intention of the Commission’s
predecessor agency when promulgating this rule when it expressly declined to limit the local area
to a five-mile radius around a landfill sites” Indeed, considering the lengthy distance that the
trucks bearing hazardous waste will be traveling, and the fact that they will be traveling through
a major city, the potential risks associated with the transportation are such that an evaluation
beyond a live-mile radius is clearly warranted, For example, Altair’s witnesses acknowledged
the potential for hazardous waste to spill into the Colorado River in transit, yet did not evaluate
this risk. Similarly: the evidence shows that Altair did not evaluate the exposure potential from
hazardous waste blowing out of the bins during transportation as it travels on roadways through
Houston. In this case, in order for the Commission to determine whether the Altair Facility is
compatible with local land use, the Application requires information on the risks associated with
transportation of hazardous waste to the facility from its inception at the Deer Park Facility.
3” Altair Ex.
m
~ 8 at
Darmor EXS. 2
29 through 2—10 (emphasis added)
at 4l—42; Z? (16 Tim Reg. 6065 at 6066 (October 25, 1991)).
TCEQ DOCKET NO. ZOIS—DOIJ-IHW
c. Transportation Routes (Commission rule 305.50(a)(10)(D))
Commission rule 305,50(a)(10)(D) requires Altair to provide a description of the major
routes of travel in thc vicinity ofthc facility to be used for the transportation of hazardous
waste
to and from the facility, togeflter with a map showing the landvuse patterns, covering at least a
five-mile radius from the boundaries of the facility. In this case, a major highway intersection is
in the vicinity located near Columbus, a mere two miles farther, yet Altair did not include it
Considering the evidence regarding the importance of the Ill 10

when performing its analysis.
and Hwy 7! intersection to the state, and the level of congestion at the intersection, the ALJs find
that, in this case, an analysis that includes the intersection ol 10 and Hwy 71 in the Vicinity of
the Altair Facility is necessary under Commission rule 305.50(a)(l 0)(D).
d. Burden on Public Roadways (Commission rule 305.50(a)(12)) and

Emergency Response Capabilities (Commission rule 335.182)
Because Altair submitted an application for a noncommercial hazardous waste
management facility, it did not address the rules applicable to commercial facilities, which would
include demonstrations regarding certain transportation burdens and emergency

response
capabilities.S36 As previously discussed, the ALJs have found that the Application is for a
commercial facility,
1. LAND USE REQUIREMENTS”
Commission rule 335.205(a)(l) prohibits the Commission from issuing a permit for a
new hazardous waste management facility that does not meet the requirements of Commission
rule 335204. Commission rule 335.204(c)(6) states:
‘3"
“7
~
30 Text Admin. Code §§ 305,50ta)(ll), 335.182.
Not already discussed in another section,
SOAlIDOCKET NO. Sill-184960 PROPOSAL FOR DECISION PAGE 163
TCEQ DOCKET NO, EDIE-OOIE-IHW
A landfill may not be located within LOOO feet of an established residence,

church, school, day care center, surface water body used for a public drinking
water supply, or dedicated public park i . , l
Furthermore, Commission rule 335,180 requires the Commission to assess the impact of
the proposed facility on local land use in the area. In determining compatibility of a new
hazardous waste management facility with local land use, the Commission must consider the
risks associated with the transportation ol‘ hazardous waste to the facility.833 In addition, the
Commission may consider the location of the facility in relation to high-hazard areas such as
lOO-year hurricane flood zonesm Based on its assessment of the Application with respect to
local land use, the Commission may deny an application or impose permit conditions deemed
necessary to minimize or mitigate detrimental impacts on local land use.”
1. Altair
Altair contends the Application complies with all land use requirements, including
transportation-related requirements
Mr. Graves testified that the Altair Facility will not be within 1,000 feet of the land uses
specified in Commission rule 335,204(e)(6).8“ lie also stated that the Application meets the
requirements of Commission rules 305,50(a)(lO)(A)—(D) and 335.180 because it contains “the
required land use information which allows the 'l'CEQ to determine whether the facility is
compatible with local land use.”M Specifically, no land use plans were identified within a
fiveimile radius of the Altair Facility; the MSW facility does not receive hazardous waste, and
no other industrial or waste generating facilities are located within ‘/2 mile of the Altair Facility;
~
and the Application contains a map identifying the major routes of travel within five-mile of the
5” 3O 'l'ex, Admin, Code § 335‘180(l)(C).

“9 30Tex. Admin. Code
§ 335,!80(2)(C).
“0 3O Tex. Admin. Code 335.180(3).
§
“‘ Altair Ex, 2 aLOUOKSO.
“7 Altair Ex. 2 at 000860.
'I'CEQ DOCKET NO. 201&0013—IHW
Altair Facility.843 ML Graves explained that Altair did not provide transportation or emergency
response information because those demonstrations are not required of a noncommercial
facility.” in his opinion, the Commission would consider the impact to public roadways and
local emergency response capabilities when assessing local land use compatibility and the risks
associated with transportation of hazardous waste to the facility under Commission rule
335.180(l)(C)i845
2. The ED
The ED takes the position that the Application includes the requisite information
regarding land use as required by Commission rule 335i204(e), regarding site selection. The El)
states that the Application Site Selection Report provides land use infmmation demonstrating the
proximity of the Altair Facility to residences, churches, schools, day care centers; and
parks”
With regard to land use compatibility, Mr.Venkat testified that he looked at the
infomtation that was provided in the Application: but he did not do a land use evaluation
himself,847
3. Darmnr
As set forth in Section NE. of this PFIL Darmor asserts that the evaluation of
transportation risks is a necessary element of the required evaluation of the impacts of a facility
on local land use; yet no analysis oflransportation risks was performed, and no expert opined as
to the compatibility of the Altair Facility on local land uses.“8 in addition, Darmor contends that
W 2 at 000861,
m
Altair l-Lx.
W Altair Ex, 2 at 000861; 30 'l'ex. Admin. Code § 305.50(a)(12),

“5 Altair Ex. 2 at 00086],
M Altair Ex, 22 at 001322
’“7
Tr. at 1522.
3" Dormer lnillal Brief at 47,
the increase in potential emission of airborne contaminants also renders the Altair Facility
incompatible with local land uses, and at a minimum should be mitigated with a requirement for
the use of daily cover,
Regarding airborne emissions, Dormer points to the Application itself, wherein Altair
notes that, “[p]ossible hazards during waste unloading operations that might occur are related to
landfill?“9
airborne particle emissions (Lei, dust) from trucks emptying their waste loads at the
Mr. Graves acknowledged that the airborne dust could contain heavy metals such as lead or
mercuryixs‘) in addition, Mr. Graves admitted that there will be occasions when waste is placed
at the site at a height above the top of the perimeter dikes, at which point the dikes will not
he as
effective of a wind break.2m Despite this, Darmor states, no analysis was done regarding the
potential impact of airborne emissions on nearby land uses such as ranching or farming, nor on
the Colorado River.“52 The Final Draft Permit does not require daily cover at the Altair Facility,
and there are no plans to do so.“3 Darmor urges that the use of daily cover could reduce the
potential for airborne emissions of hazardous contaminants and urges this requirement
if the
permit is issued.854
Describing the area around the Altair Facility as primarily used for agricultural and
hunting purposes; and the nearby Colorado River as used for recreation us well as irrigation and
water For cattle; Darmor emphasizes that Altair has failed to demonstrate that the Altair Facility
is compatible with the local land uses.“55
“5°
it, at
~
“9 Altair EX. 2—2
409.
at 001540.
3“ Tr, at406-07.
“7 Tr, at 474—75,
3” 'l'r. 21(408-09,
55‘
Dannor initial Brief at 57.
’5‘
Darmor initial Brief at 56.
SOAH DOCKET NO, 581434960 PROPOSAL FOR DECISION PAGE 166
TCEQ DOCKET NO, 20l8-0013-IHW
Judge Prausc testified that the local land use near the Altair Facility is primarily gravel
pits and agriculture, including rice l'tn'ming, soybean farming, and cattle grazing.356 The
Colorado River is approximately two miles from the Site, and is used for irrigation for
agriculture, water for livestock, for fishing, boating, and tourism.SS7 Judge Prause expressed his
concern with the impact of the Altair Facility on the public health and welfare of the citizens of
Colorado County. Specifically, he believes the increase in truck traffic, the risk of a hazardous
waste spill, and the potential for a leak of hazardous waste into the Colorado River, are threats to
the public safety it‘the Application is granted.353
5. LCRA
6. ()PIC
OPIC points out that even though Commission rule 335.180 does not have a distance
limitation, Altair chosc to apply the tive«mile radius, OPIC believes that in this case, the fact
that a major intersection (III 10 and Hwy 71) of the route is within seven miles of the Site, it
should be assesscd to ensure the transportation risk is properly considered. Because the
transportation analysis used in assessing the impact of the Altair Facility on local land use did
not do so, OPlC takes the position that this deficiency does not allow for an adequate assessment
of the risks associated with the transportation of hazardous waste to the Altair Facility as
required by Commission rulc 335.180(l)(C)V
‘56
Aligned Protestants Ex, 4 at “7; Ti: at 1437.
“57
Aligned Protestants Ex. 4 at I 17-18; Tr. at 1437.
35‘
Aligned Protestants 13x. 4 at 120.
SOAH DOCKET PROPOSAL FOR DECISION PAGE 167
TCEQ DOCKET , ~
0. 582484960
. 20184)“!3—[HW
7v Aluls’ Analysis
'lhc evidence was undisputed that Altair provided the requisite information to
dcmonstratc compliance with Commission rule 335.204(C)(6)7prohihiting a landfill from
locating within L000 feet of an established residence, church, school, day care center, surface
watcr body used for a public drinking water Hupply, or dedicated public park.
llowcvcr, as thc evidence has shown, no analysis of u-anspnrtation risks was performed,
and no expcn opined us to the compatibility of the Altair Facility on local land uses as required
by Commission rule 335.180. The: ALJs agree with MnGravcs’s assessmcnt that the
Commission should considcr the impact to public roadways and local emergency rcsponse
capabilities when assessing local land use compatibility and the risks associated with
transpoimtiozi of hazardous waste to the facility under Commission rule 335.180(ll((i)_
'l‘cllingly, the testimony revealed that Altair relied on Geosyntcc to address the land use
requirements: however. Mr Graves testified that he believed it was the Commission’s duty to
cvaluatc land use compatibility, so he did not make his own [and use compatibility
dctcrminatitm,85‘7 Mr. Venkat however, testified that he merely looked at what Altair provided.
and did not perform his own independent evaluation of land use compatibility.“ to short: each
export asserted that someone else had evaluated land use compatibili ~ yet no witness opined
that the safety risks‘ crcated by the transportation of liayartlous waste associated with the Altair
Facility are compatible with local land use. Because the evaluation of transportation risks is a
necessary element oftltc required evaluation ot'the impacts ofa Facility on local land use, and no
anal ~ of lranspurtatirm risks was pert‘ontted; and because no expert opined as to the
Altair has failed to detnonstratc that the
compatibility of the Altair Facility with local land use ;
Altair Facility will be compatible with local land use
~
‘5"
Tr.
a:
m
2l3>4
[522,
~
SOAH DOCKET NO, SXZ-lfl-lQétl
TCEQ DOCKET V'O. 2018—0013—lllw
PROPOSAL FOR DR ~ PAGE 168
.L AIR EMISSIONSSm
Commission rule 335.1730) mandates that il‘thc landfill contains any particulate matter
which may be subject to wind dispersal. the owner or operator must cover or otherwise manage
the landfill to control wind dispersal.
Commission tulc 335 152 incorporates the requit‘emm ~ ot‘40 (KER. Subparts AA (Air
Emission Standards for Proees Vents), BB (Air Emission Standards for Equipment Leaks), and
CC (Air Emission Standards for ’l‘anlx'st Surface Impoundments, zmd Containers).
I. Altair
Altair states that it is not seeking Cortimission authorization for air emissions because:
There are no proposed process vents, prox ~

its relating to equipment looks are
inapplicable hceaose the waste streams will not have org-(mix; concentrations of
l0% by weight or greater, and the waste streams will not have volatile organic
compounds since organics will have been destroyed Vin incineration or thermal
destructionfi62
Altair contends that, based on Clean Harbors“ experience with the Deer Park Facility. the
hazardous Waste to be transported and disposed of at the Altttlt‘ l-‘aeility does not produce any
appreciable amounts of airborne particulates.803 Regardless. Altair points out that the
Engineering Report includes measures to address particulate matter and other potential emissions
in compliance with Commission rule 335.1730), Specifically, those provisions state that trucks
will be covered during transport amt will dump their loads directly into the active cell, and those
loads will be promptly spread nntl compacted in the active cell by cartlnnoving equipment In
addition, the waste will be sprinkled with water three times a day to prevent dust. If dust
becomes VtSlbiC, Witter or a dust-binding agent will be applied If problems persist» interim soil
on >-
“M Altxir t3): I lit 0009

~~in another section,
‘3
Altair lix. 2-2 at IlOlSMl.
TCEQ DOCKET NO. 2018-0013-l
em er will be placcd as soon as practicable El) minimize the wind dispersal, Additionally~ it is
expected that thc presence of u perimeter dike highcr than the waste in Lhc active iandfill will
mitigatc against airborne emissions by acting as a windln'eak.KM
In sum Altair states that it is not rcquircd to obtain an air permit because its operations
do not entail regulated air contaminants; and [lull although (lust emissions are, not anticipatcdl
Altai: will take necessary steps to pret'ent dust liram creating a nuisance or causing, air
pollution.“
2. Tllc El)
'l‘hc ED states that the Altair l‘acility would not bc subject to the air emission
requirements of 40 C~ R. Suhparts AA7 BB. and (SC as incorporatccl by Commission rule
335l152. The basis for tlic ED’s opinion is that the Application docs not propose any processing
vents: docs not propose to manage waste containing organics with concentrations of 10% or
greater by weight; and the waste strcam proposed [0 be generated and managed cit—site (leachate
and contaminated sterinwatcr) would not contain volatile organic compounds.““
The Final Draft Permit provides that emissions from the Altair Facility may not cause or
contribute to a condition ot‘air polintion, as dclincd in 'l‘cxaa Health and Safety Codc § 3810034
or Violate § 382085, prohibiting unauthorized emissions. If the l:.D determines that such a
condition or violation occurs) the Final Draft Pcnnit states that Altair must implement additional
abatement measures as necessary to control or prevent the condition or Violation.” Altair will
~~
also be rcqtiircd to comply with state and federal air quality laws; however, if any air permitting
m ~~
“5 Altair
ir 2 at (30154
lintial Bricfat 59
K“ ED lni .IlBI‘iUlL1l25;AllBll‘ L ~ .2<2 at 0012212
“’7
ED Ex. 9 at 54.
is required, it is outside the scope of the ED’s review of an application for a hazardous waste
landfill facility.868
The ED did acknowledge, however, that during waste operations there may be the
possibility of airborne particle emissions from trucks emptying their waste loads at the Landfill.
Because the Application also contained information regarding mitigation of these airborne
emissions, Mr. Venkat opined that the information in the Application meets the regulatory
requirements869
3. Darmur
Darmor’s arguments regarding air emissions are discussed in Section IVAI, of the PFD,
regarding land use requirements.
Aligned Protestants did not offer argument regarding air emissions beyond the testimony
of Judge l’rause7 that some of the more recent thunderstorms in Colorado County have been
accompanied by strong straight-line winds and the occasional tomado.g7°
5. LCRA
LCRA did not offer evidence nor argument on this issue.
6. OPIC
“5
OPIC
ED Ex ms. 1
~
did not offer evidence or argument on this issue.
“’9
ED Exs. 3151; 9 al29,
l
37°
Tr. at 1437-38.
SOMI DOCK
TC‘EQ DOCK
~.T
NU. 582—]8—1960
N0. 20l8<0013~lHW
PROPOBAL FOR DF ~ PAGE I71
7. ALJs’ Analysis
The uncontrovetted evidence establishes that the Altair Facility would not be subject to
the air emission requirements ei’ 40 CIR. Suhparts Am BB. and CC, as incorporated by
Commission nile 335.152,
With regard to Commission rule 335.]73tj). thc ALJs find that Altair has dentonstratctl
management techniques it intends to employ to control wind dispersal of the particulate matter.
Specifically. Altair will use tarps on trttcks‘ unload in the aetive cell, spread and compact the
waste in the active cell by earthmoving equipment, and sprinkle the waste with water three times
becomes has indicated that water or a dust-binding
~
a day to prevent dust, ll‘dttst visible, Altair
agent will be applied, and if problems persist, interim soil cover will he placed soon as
practicable. Additionally, Altair provided testimony that the presence of a perimeter dike highet
than the waste in the active landfill will mitigate against airborne emissions by acting as a
windbreak; however. once waste is placed at heights above the top of the perimeter dike, the «like
will not be as effective of a wind break. 'llte evidence established that the Altair Facility will
contain particulate matter that may be subject to wind dispersal, and that Altair proposes a
number of management techniques to control wind dispersal of the particulate matter. For these
reasons the ALJs find that Altair has established that it will he tttanaging the landfill in
compliance with tjomtnission rule 335Vl730).
Vt TRANSCRIPT COSTS
Altair submitted copies of invoices for the transcript that total $23,275.15.“ The ED
and ()I’IC cannot be assessed transcript costs because they are statutory parties and cannot appeal
any ruling, decision or any action of the Commission.

~J”
Because LCRA did not pre-tile
testimony and its cross—examination time was minimal, Altair recommends it not be assessed any
Based on the extensive participation of Aligned Protestants and Darrtior, Altair asserts the
~
costs.
~
~ B n 60 (and Exhibit A
'
Altair Initial thereto).
‘
Jill'nxrAdmin.(,1ode§8tl,23(d)(2).
TCEQ DOCKET NO. 2018~0013~IHW
transcript costs should be assessed 55% to Aligned Protestants, 20% to Dan-nor, and 25% to
873
Altair.
Having considered the factors set forth in Commissiun rule 80.2301), the ALJs
recommend that 100% of the transcript costs be assessed against Altair. The Application was
found deficient by the AIJs in numerous respects and the ADS recommend its denial. Thus, the
ALJs find it must just and reasonable to assign the full cost to Altairl
VI, CONCLUSION
As stated in this PFD, the ALJs conclude that Altair’s Application does not comply with
a number of requirements in the Commission’s rules and recommend that the Application be
denied, The ALJs recommend denial of all findings of fact and conclusions of law submitted by
the parties but not included in the Proposed Order.
~
SIGNED May 7, 2019.
~ (: ff
~~~
[,-
‘) I. .
k
A
~~
A I-‘Ammm PRATIBIIAJE‘IiIm‘m' I
ADMIN ~ 'I'RA'I‘IVF. LAW JUDGE ADMINISTRATIVE LAW JUDGE

.
STATE OFFICE OF ADMINISTRATIVE HEARINGS STATE OFFICE OF ADMINIS'I'MA'I‘IVE HEARINGS
~
"3 Altair Initial Brief at 6l ~62,
AN ORDER
DENYING TIIE APPLICATION OF
ALTAIR DISPOSAL SERVICES, LLC, FOR A NEW NONCOMMERCIAL
HAZARDOUS WASTE LANDFILL IN
COLORADO COUNTY, TEXAS;
TCEQ Docket No. 2018-0013—IHW;
SOAII Docket Nu. 582»18-1 960
On ,
r the Texas Commission on Environmental Quality (Commission
or TCEQ) considered an application by Altair Disposal Services, LLC (Altair) for a now hazardous
wastc permit to authorize construction and operation of a noncommercial, hazardous waste landfill
disposal facility in Colorado County; Texas (Altair Facility) A proposal for decision (PFD) was
presented by Administrative Law Judges (ALIS) Meitra Farhadi and Pratibha J. Shenoy with the
State Office of Administrative Hearings (SO/\H), who conducted an evidentiary hearing
concerning the application on December 6-18, 2018, in Austin, Texas,
Aficr considering the AUS’ PFD, the Commission adopts the following findings of that
and conclusions of law:
I. FINDINGS OF FACT
Background and Procedural History
1‘ On Octohcr 22, 2013, Altair filed an application with the TCEQ for permit no, 50407 to
construct and operate thc Altair Facility (Application),
2, The Application requests authorization to construct and operate a noncommercial, captive

hazardous waste landfill.
3‘ The Altair Facility would receive, and dispose by landfilling: hazardous and nonhazardous
incinerator and thermal desorption ash/residue generated off-site from commercial
hazardous waste treatment storage and disposal (TSD) facilities located in Texas and
owned and operated by Clean Harbors, Inc, [Clean Harbors).
throughout the United States. Canada, Mexico. and Pucrto Ric-o.
Through its various affiliates and subsidiaries. Clean Harbors provides hazardous waste
~
management sen ices. emergency spill response set ~ ees, industrial cleaning and
~
maintenance senie and recycling and disposal services,

,
Altair is a wholly owned subsidiary of Clean Harbors Disposal Services. Inc. (Clean
Harbors Disposal). which is a wholly owned subsidiary ol‘t‘lcan Harbors.
f4
The Altair l-‘z would be located approximately six miles south of the intersection of
cility
interstate Highway (ill) 10 and 'l‘exas Highway (Hwy) 7 and two miles north of Altair.
|
,
Texas (Site),
~~
Notice ofa rare—application public meeting was provided with a visible and Gate ‘ible Sign.
published in The Colorado Citizen and broadcast on September 18, 2013‘ and published in
The Banner I’rea‘)‘ Ncii‘spaper on September ML 2013. Notice was also provided to the
TCEQ.
On October 2], 2013, Altair held prc~application meejng iu Columbus, 'l'cxas.
The Site encompasses approximately 472 acres. The southern part ofihc Altair property
has been operated as a municipal solid waste landfill (MSW Facility) since approximately
1973 on a permit boundary ot'apprcximzttely 197 acres.
The northern part of the Site encompasses approximately 276 acres and would be the
permit boundary for the Altair Facility. Within those 276 act
would encompass
approximately 66 acres
the footprint ot'the landfill (Landfill).
~
12‘ The Landfill would include 12 eelis, each divided into subecllst and would be constructed
above the grade of the ground, surrounded by a dike system, A final cover system would
be placed over individual cells as they reach capacity.
Altair paid the required application fee.
Altairmade a copy of the Application available for inspection and copying at the Nesbitt
Memorial library, 529 Washington Street. Columbus, Texas 78934.
The Executive Director (ED) oi‘thc 'I‘CEQ declared the Application to he adniiuistrutivel)
complete on November 20M.
~
'20.
The Final Draft ilazau'dous Waste Permit No. 50407 (Permit) authorizes activitie‘ and ~
component.c ciated with the storage, prooe ~ ~.mg, and disposal oi‘hazutdous waste and
industrial solid waste at a noncommercial faculty,
On November 25, 2013, the Chief Clerk of the TCEQ
mailed the Notice of Receipt of
Application and Intent to Obtain an Industrial Hazardous Waste Permit (NORI) to adjacent
landowners, public officials, and other persons entitled to receive notice under rules TCEQ
or who requested notice. On December 6, 2013, the Chief Clerk also mailed the NORI to
individuals that participated in the October 21, 2013 pre~application meeting.
011 December 19, 2013, the NORl was published in The Banner Press Newspaper
The ED issued one administrative notice of deficiency (NOD) on Novembcr 5,2013,

during the administrative review and two technical NOD: on March18,2014, and
March 4, 2015, to Altair during its technical review; in response, Altair provided updated
Application materials on November 6, 2013, July 8,2014, June 26, 2015, and
November 12, 2015.
20. The ED found that the updated Application materials submitted by Altair addressed all
issues raised in the NODs.

21. A Notice of Public Meeting was mailed by first-class mail on October 20, 2016 by the
ChiofClcrk to all persons on the mailing list.
22. The Notice of Public Meeting was published The Banner Press Newspaper on
in
November 10, 2016, November 17, 2016, and November 24, 2016, and in The Calaradu
Citizen on November 9, 2016, November 16, 2016. and November 23, 2016.
23. The TCEQ held a public meeting on the Application on December 1, 2016, in Columbus,
Texas.
24. The public comment period for the Application closed on December I
,
2016.
25, On June 2016, the

2, ED issued a Technical Summary and Executive Director’s
Preliminary Decision.
26. The ED issued a Notice ol‘Applicatior-i and Preliminary Decision (NAPD) and a Final Draft
Permit on June 27, 2016.
27. On June 29, 2016, the Chief Clerk mailed the NAPD to adjacent landowners, public
officials, and other persons entitled to receive notice under TCEQ rules or who requested
notice.
28. The NAPD in the IIaIIetsviZIe Tribune-Herald and The Colorado County
was published
Citizen on July 20, 2016, and in We
Banner Press, The Eagle Lake Headlight, The Seuly
News, and The Ear: Bernard Express on July 21, 2016. The NAPD
was also published in
Spanish in The Cnlaradu County Citizen on July 20, 2016, and in The Banner Press and
The Eagle Lake Headlight on July 21, 2016. The NAPD
was also broadcast on
July 20, 2016.
29. On November 2017, the 1313 filed a Response to Public

14, Comments and stated that no
changes were made in response to public comment.
30. On November 20, 2017, the ED declared the Application to be technically complete.
31. By dated January 9, 2018, Altair requested that the Application be directly referred
letter
to SOAl—l for a contested case hearing,
32. On February 5, 2018, the Chief Clerk mailed a Notice of Hearing and on February 6, 2018,
mailed an Amended Notice of Hearing to interested persons, public officials, and other
persons entitled to receive notice under TCEQ rules or who requested notice.
The Amended Notice et'Hearing was published in Wharton Journal—Spectator, Hallersviilc

Tribune-Herald, The Colorado County Citizen, and the Jackson Co. Herald-Tribune on
February 21, 2018, March 7, 2018, March 14, 2018, and March 21, 2018, and The Banner
Press N€\1'Spaper and The Eagle Lake Headlight on February 22, 2018, March 8, 2018,
March 15, 2018, and March 22, 2018. The Amended Notice of Hearing was mailed to all
persons on the mailing list on February 21, 2018. The Amended Notice of Hearing was
also broadcast sixteen times between February 22, 2018, and March 23, 2018.
34. On March 28, 2018, SOAH AIJ Meitra Farhadi held a preliminary hearing in Columbus,
Texas
35. At the preliminary hearing, the SOAH A1,] admitted the following as Parties to the
proceeding: ED; the Office of Public Interest Counsel (OPIC); the Lower
Altair; the
Colorado River Authority (LCRA); Darmor Investments, LP (Darmor); Colorado County,
Colorado County Groundwater Conservation District, Alliance for a Clean Environment
(ACE) and Rice Consolidated Independent School District (collectively Aligned
Protestants); and United Methodist Women’s Organization (UMWO) A request for party
status by Tom Etheridge was taken under advisement at the preliminary hearing by the AL]
but denied in Order No. 1 on the grounds that Mr. Etheridgc did not meet the definition of
an affected person,
361 During discovery in 2018, Aligned Protestants sought leave to enter the Site to conduet
surface and subsurface inspection of the soils within the Landfill footprint. ALJs Farhadi
and Pratibha J Shenoy granted the request, and Aligned Protestants conducted discovery
,
at the Site in October and November 2018.
37. On November 29, 2018, the ALJs held a prehearing, conference.
38. The hearing on the merits was held from December 6-18, 2018, at the SOAH offices, in
Austin, Texas.
39, Altair, the ED7 Darmor, and Aligned Protestants pre-filed direct case testimony and
exhibits. Except for UMWO, all Parties participated in the hearing on the merits through
their designated representatives,
40. After the parties submitted Written closing arguments, the record closed on March 8, 2019.
Commcrcial/Noncnmmereial Classification of Altair Facility
41. The Application requests authorization to construct and operate a noncommercial, captive
42‘ Commercial hazardous waste facilities owned (or effectively controlled by) Clean Harbors
accept waste on a commercial basis, then thermally treat the waste, stabilize the treatment
residue to meet the hazardous waste land disposal restrictions, and then dispose of the waste
by landfilling.
43. According and the Final Draft Permit, the only wastes that Altair would
to the Application
accept at the Landfill would be: (1) incineration ash/residue hazardous wastes from Clean
Harbors Deer Park, LLCin Deer Park, Texas (Deer Park Facility) and (2) Thermal
Desorption Unit (TDU) process non-hazardous industrial waste from DuraThcrm, Inc. in
San Leon, Texas (DuraTherm Facility), as well as non-hazardous treatment residue from
Clean Harbors-owned and operated mobile TDU treatment units that manage oil and gas
exploration and production waste in Texas.
44. The wastes generated the Deer Park Facility are currently being disposed of at a
at
hazardous waste landfill onsite which is expected to reach capacity in the next 5—7 years;
the ‘l'DU wastes generated at the DuraTherm Facility are being disposed of at third-party
non-hazardous landfills; and Clean Harbors does not currently have any mobile TDUs in
Texas.
The Deer Park Facility is permitted by the TCEQ as a commercial hazardous waste
management facility, and consists of a hazardous waste incinerator, a landfill, and storage
facilities
46. The landfill at the Deer Park Facility is currently the only hazardous waste landfill in Texas
operated by any Clean Harbors entity.
47. The landfill at the Deer Park Facility is permitted as a commercial hazardous waste
management facility and only receives incineration ash/residue hazardous wastes from the
Deer Park Facility,
48. The Altair Facility is to be an extension ofthc commercial hazardous waste landfill unit on
the Deer Park Facility
49. Commercial of the waste being incinerated at the Deer

industrial generators are the sources
Park Facility. These original generators pay a fee to Clean llarhors for those waste
management services, and similarly, the original generators that send their waste to the
DuraThcrm Facility for waste management also pay a fee to for those services.
50. A waste code is a code defined by the Environmental Protection Agency (EPA) to describe
a particular waste. Each type of hazardous waste has a particular code associated with it,
When a listed hazardous waste is treated, the residual from the treatment process maintains
the same waste code through to its final disposition. Therefore, the same waste codes will
carry through [him the original generator. thmugh the incineration or thermal treatment
facility, to the final disposai site at the Altair Facility.
~
When
int
occur.
~ ~
the Altair Facility receives wastes from a Clean Harbors facil
ompany '
counting debit/credit ledger adjustment.
there will be an
commercial invoicing will
A “charge” does not require a cash payment or an invotce,
vnriuus Clean Ilarhors subsidiarie ~

Clean Harbors will track the financial tmnsact‘ions through cost accounting between the
\ “charge” will be asse'sctl to the related subsidiary
for the acceptance and disposal of waste and will ultimately be passed on to the outside
customers ot‘Clean Harbors as part of their charges for incineratiun and disposal services.
54: l'he credits afforded to Altair by Clcan l'larhurs (or one of its subsidiaries) to offset the
dchits that Altair would incur for its operational expenses would hour 3 direct relationship
to the amount ut‘wastc managed at the Altair l-‘acility. Therefore, those credits would be
cunsidcratlcu paid to Altair to manage waste for Clean Harbors subsidiaries.
v. u.
Altair will accept hazardous waste for a charge.
The Altair Facility would be located on the same parcel ol‘reai property as the existing
MSW Facility. and contiguous to the MSW Facility.
'lhe MSW Facility accepts waste fur a charge on a commercial basis.
The MSW Facility and the proposed Altair Facility each have their own legai description
containing their mm t‘~~~
11i boundary, ouch have their own H’A identification number,
and each have their own unique TCFQ regulated entity number.
W Facility would not be part ut‘the

~
The N Altziit' Facilityt
Clean Harbors owns or c tivcly controls both the Altair Facility and the treatment
facilities (Deer Park Facility, DuraThertn Facility, and mobile TDlis).
61. Altuir does not own or effectively control the Deer Park Facility or the Dura’l‘hcrm Facility.
()2. ‘lhc sources of the waste being incinerated at the Deer Park Facility are commercial
gcneraturs> not under the ownership or contrnl of either Altair or Clean Harbors.
63 The activity of treating hazardous wastes causes the treatment facility to become a
generator of the residue wastes.
64. The generators of the waste sent to the Altair Facility includc the original commercial
gcncmters who initially produced the waste, rendering it first subject to regulation; and the
Clean Harbors entities by way ot‘thcir treatment processes,
(:5. The Altair Facility would receive waste generated by entities other than Clean Harbors
entities.
66. The Altair Facility will not be u captive facility,
Analysis “Practical, Economic, and Feasible Alternatives that are Reasonably Available
67. Altair did not evaluate vertical expansion of the Deer Pail; l’aeility in conjunction with a
horizontal expansion
68. Altair did not evaluate alternative locations for siting the proposed hazardous waste
landfill,
69. Altair did not evaluate existing commercial hazardous waste landfills capable of disposing
hazardous waste
‘70. At least three commercial harardous waste landfills exist which might be able to accept the
hazardous waste proposed to be disposed ot‘hy landfilling at the Altair Facility.
71. Altair did not perform a cost comparison to take into account the longtertn cost of
designing, permitting, eonstrtieting, and operating the Altair Facility versus sending the
waste to one 01‘ the other facilities capable otheeepting the waste.
‘4
m Altair did not perform :1 east comparison to analyze the cost of purchasing land closer to
the Deer Park Facility for permitting a new hazardous waste landfill versus the
transportation e ~ ~~s and risks associated with transponing hazardous waste 100 miles to
the Altair Facility. ~
73.
reasonably available to manage the w ~
Altair did not adequately consider practical. economic, and feasible tdtematives that are
74. The ED did not evaluate if there was a practicala economic and feasible alternative that is
reasonably available to manage the waste, because Altair did not provide :he ED with
inibrmmion to review,
Location and Siting Requirements
7m The Landfill is proposed to be located in Unit 1. the Beaumont Formation. which is
composed primarily otgray to red-brown ~

clay, typically eln. ilicd as lean to fat clay, with
occasional pockets of trace to moderate amounts of fine sand and a layer of ealiehe of
varying thickness.
76. Unit l ranges in thickness from 10 feet to 35 feet across the Site, but is approximately
20 to 25 feet thick in the vicinity of the proposed landfill.
77. Immediately below Unit 1, Unit 11 contains the Lissie Fen-nation, the uppermost part of the
Chit aq uifer. which is part of the GulfCoast Aquifer System.
78. ’l‘CEQ technical guidance resources classify the Altair area as an aquifer recharge zone that
would likely present significant problems for the disposal of solid waste.
79. In the 19905, the 131) twice deemed portions of the Site unsuitable for proposed waste
disposal sites based on geological and site location concerns, The geology of the Site has
not changed in any significant respect since the 19905.
80. There is extensive sand and gravel mining in the three-county area surrounding the Site.
81, The TCEQ allows caliche in Colorado County to be used for below-ground disposal of
wastewaters from domestic sewage systems because the caliche has been found suificiently
permeable for disposal.
82. Sandier pockets encountered in the subsurface investigations oftho Landfill are variable in
composition, and where present, are found as sand lenses, typically in soil classified as
sandy clay to clayey sand. Samples of clay from the Landfill consistently have sand and
silt content of 25% to 40%.
83. To be adequately protective of the aquifer in Unit 1L the bottom of the Landfill must be
separated from the top of the aquifer by at least a 10-foot thick barrier of soils with
hydraulic conductivity of no greater than 1 x 10‘7 cm/sec. In addition, the Landfill may not
have= in the first five feet of soil surrounding the containment structure, soils with Unified
Soil Classification of GW
(well-graded gravel), GP (poorly—graded gravel), (siltyGM
gravel), GC (clayey gravel), (well-graded sand), Sl’ (poorly-graded sand), or SM (silty
SW
sand), or that have a hydraulic conductivity greater thm l x 10'5 (mt/sec.
84, Hydraulic conductivity values at the Landfill vary over several orders of magnitude. Soil
classifications vary across the Landfill, including samples taken from a single boring.
Maximum and minimum hydraulic conductivity values ofsoils at the Landfill are 33 x 10'6
~
85.
and 2.1 x 10"0em/sec, respectively. The average hydraulic conduct~ ‘ty value in the
Landfill footprint is 2,43 x 10'7 em/sec. The median is 1.81 x 10'8 cmlsec.
86. The Application characterized the hydraulic conductivity of Unit 1 soils at the Landfill by
using the geometric mean of the hydraulic conductivity values. which is 1.81 x 10'3 csec.
8‘7. The geometric mean has not been used to characterize soil data in any other permit
application for a new hazardous waste landfill approved by the ED or the Commission.
88. The geometric mean as presented in the Application distorts the hydraulic conductivity of
the Landfill site because it cxoludcs values from sand samples, does not include any values
for caliche, and is also presumed to represent the hydraulic conductivity ofall untested and
uneharacterizcd soil at the 1 .andfill.
89. In situ hydraulic conductivity testing requested by the ED in the March 18, 2014 NOD was
not performed by Altair:
90. The record evidence fails toadequately characterize the hydraulic conductivity and soil
classifications of the soils in the Landfill footprint.
91. The record evidence does not establish whether the sand lenses found in Unit lat the
Landfill could facilitate lateral or vertical hydraulic migration ol‘ pollutants to the aquifer
in Unit Ill
Financial Assurance/Information
92. A corporate guarantee is an acceptable alternative mechanism for financial assurance.

93. A corporate guarantee from a publicly traded corporate parent is sufficient to meet the
financial capability (financial assmance for operations) requirements of an applicant.
94. The Application includes publicly available audited statements, estimated construction
costs for the Altair Facility of $6,654,4l9, and a letter of guarantee from Clean Harbors’
President and Chief Financial Officer certifying that Clean Harbors will act as guarantor
for Altair to ensure that Altair has the financial resources to construct and safely operate
the Altair Facility.
95. Altair has sufficient financial resources to construct, safely operate, properly close, and
provide adequate closure and liability coverage for the Altair Facility.
Waste Analysis Plan and Waste Characterization
96. The only waste streams to he accepted at the Landfill are residue and other wastes from the
Deer Park Facility incineration process and dry thermal residue wastes from the
Dura'l‘herni Facility, or from mobile TDUs operated by subsidiaries of Clean Harbors.
97. The wastes analyzed to develop the waste characterization for the Landfill were not
adequately representative of the current and potential types of incineration residue that may
be received.
98. The waste analysis inadequately described the incidental wastes that will be accepted at the
Landfill, including spent carbon, tcllerettes, crushed drums, and contaminated soil.
99. The Landfill lacks an onsite laboratory to use in analyzing incoming loads to confirm that
the waste matches the characteri7atinn listed on the manifest and/or is not incompatible
with other waste streams
Design Considerations
100. The Landfill contaimncnl system consisting

will utilize a ot' a double composite lincr on
the bottom and a final cover barrier on the top.
101. Altair‘s use of a high—density polyethylene (HDPE) liner meets all chemical compatibility
requirements.
102. Altair performed adequate settlement analysis For \lie HDPI? liner.
l0}, Altair will use a geusynthetic clay liner (UCL) us part ot‘the composite barrier nfthe t'mal
cover system.
104. use of a GCL layer in the final cover system

Altttir‘s is appropriate from a physical,
mechanical, and chemical equivalency perspective.
Stormwater and Lcachatc
The proposed stormwuter management plan for stormwater that will not come into ctmtact
with waste (elenn stcnnwater) is adequate.
The landfill was designed based on inlbrmation available in 2013 regarding the
prec~~ttation projection of 194 inches lbra24~houn loo-year storm (Old 14/100 Storm).
l
In September 2018; the National Oceanic and Autiosplierie Administration published

Atlas 14, a new precipitation atlas for Texas. Atlas 14 cuntains the best currentlyavttilahle
precipitation tbrccasts and estimates the 24—hour, mitt-ear storm in Coloradn County will
result in approximately 14 inches ofrain (New 24/100 Storm).
lost Recent storm events in Colorado County have already exceeded the New 24/[00 Storm,
including storms in mid~April 2015 (15 inches ofrain); Apri12016 (15 to 1‘3 inches of
rain); and Hurricane Harvey in 2017 (county-wide average oil] to 26 inches ol'rain),
10‘). As of the time the Applicatiun was deemed complete, the design of the Landfill was
adequate to manage at least the contaminated stormwatcr expected to be generated from
the Old 24/ 100 Storm standard then in cft‘ecn as well as managing lcachate expected to be
generated by the storm andt'or by regular operations‘
Altair accepts the need to ensure the llaiidfill‘s stormwater and lcaehate management plan
is revisited prior to construction of the Land {ill to ensure it will he adequate based on the
best information then available
Traffic and ‘l‘ransportation Requirements
There will be approximately ten commercial trucks carrying waste from the Deer Park
Facilitv to the Altair Facility seven days a week, and ten commercial trucks departing the
Altair l’acility each day once they are emptied,
The commercial trucks earning the waste will have a trailer with a roll—off‘bini and the
hazardous wzttttc will be covered with a tat-pi
'lhe hazardous waste the trucks would entry will he a granuiar material that is
characteristically toxic, and there is the potential for the material to blow out of the hins
during transponv
114. The trucks will travel approximately 100 miles from the Deer Park Facility through
Houston heading west on IH 10 to Hwy 71 heading south. crossing over the Colorado
River, before reaching the Altair Facility.
115. The exposure potential from the hazardous waste blowing out of the bins during
transportation as it travels on roadways through Houston was not evaluated.
116. The potential exists for a truck to tip over and spill the hazardous waste into the Colorado
Rivcri
117. Altair did not evaluate the potential exposure from a spill into the Colorado River.
118. IH 10 and Hwy 71 are designated hurricane evacuation routes and the main route for
emergency crews to access various parts of the county.
1191 The Application shows the major transportation route to be used for the transportation of
hazardous waste to and from the Altair Facility for a distance of five miles out from the
Altair Facility and did not evaluate the major intersection of 1H 10 and Hwy 71 seven miles
from the Altair Facility
120. Additional trucks will be brought in on a periodic basis to haul of accumulated leachate
1'
and contaminated stormwater from the Altair Facility for treatment at the Deer Park
Facility.
121. The Application does not contain information on the routes oftravel from the mobile TDU s
to the Altair Facility.
122. The Application includes anexposure information report, which briefly describes the Altair
Facility and surrounding area, general operating procedures, and waste characteristics.
123. Once the waste leaves the Deer Park Facility or the Dura'l‘herm Facility in transit to the
Altair Facility for disposal, the waste is considered as being transported to the unit.
124. Altair evaluated the potential for the public to be exposed to hazardous wastes from
releases only from the onsite transportation of waste to the unit at the Altair Facility,
1251 Altair did not evaluate the potential for the public to be exposed to hazardous wastes during
transportation of waste to the unit outside the boundaries of the Altair Facility.
126. The Application does not address whether a burden would be imposed on public roadways
by vehicles traveling to and from the Altair Facility.
127. The responder resources available in Colorado County are not trained to respond
first to
hazardous waste related emergencies or hazardous waste spills on roadways.
12% The Application does not address whether emergency response capabilities are available
in the area in which the Altair Facility will be located that have the ability to manage a
reasonable worst-ease emergency condition associated with the operation of the facility.
l20. local land use consideration of transportation rislts undcr 30 T
§ 335.180 was conducted within a live-mile radius ofthe Altair ~
~ i
‘
Administrative Code
ility.
Land Use Requirements

The area around the Altsir Facilityprimarily used for gravel pits. rice l‘urmingt soybean
is
farming. cattle grazing, and hunting purposes.
The Colorado River approximately two miles from the Site and
is is used for recreation as
well as irrigation and water for cattle,
There are no land use plans for the area within a five-mile radius of the Altair Facility.
The Altair Facility will not be within 1000 feet of an established residence church, school,
day care center. surface water hotly used for a public drinking water supply, or dedicated
public park,
The MSW Facility at the Site does not receive hazardous ~sic, and no other industrial or
\
waste generating facilities are located within Vi milc ofthe Altair Facility:
The Application contains a map identifyi g the major routes of travel within a livc~milo
radius ofthe Altair Facility.
~
The evaluation of tr staortation risks is a nee ~ element of the evaluation of the
impacts oFu facility on local land use
No land use compatibility determination was performed
Air Emissions
138. 'l
he Application does not propose any processing vents; does not propose to manage waste
containing organics With concentrations of l 0% or greater hy weight; and the waste stream
proposed to be generated and managed onsite (lcaehtttc and contaminated stormwater)
would not contain volatile organic compounds.
H‘). Airborne patticle emissions tie, dust) containing heavy metals such as lead or mercury,
might occur from trucks emptying their waste loads at the landfill
140. To address particulate matter and other potential emissions; the Application includes the
following measures: trucks will be covered with a tarp during transport; trucks will dump
their loads directly into the active cell, and the load will be promptly ~~~pread and compacted
in the active cell b3 cztr‘lhn‘toving equipment: the waste will be sprinkled with water three
times a day to prevent dust; ~dust becomes visible, water or 11 dust-binding agent will be
applied; if problems pet"'st, interim soil cover will he placed as soon as practicable to
~
minimize the wind dispersal. Additionally, it is expected that the presence ofa perimeter
dike higher than the waste in the active landfill will mitigate against airborne emissions by
acting as a windbreak,
141. On occasion, waste will be placed at the site at a height above the top of the perimeter
dikes, at which point the dikes may be ineffective as a wind break.
142. The Application does not include an evaluation of the potential impact of airborne
emissions on nearby land uses such as ranching or farming, or on the Colorado River.
143. The Final Drait Permit does not require daily cover at the Altair Facility.
Compliance History
144. Altair‘scompliance history classification score was Satisfactory {or the period from
May 25, 2011 through May 25, 2016, and High for the period between October 1, 2013
and October 1, 2018,
Transcript Costs
145. Altair arranged for and paid a court reporter to report and transcribe the hearing on the
merits and to deliver the original copy of the transcript to the ALls and two copies to the
TCEQ’S Chief Clerk.
146. The cost of reporting, preparing, and delivering the transcripts to the ALJs and tlie TCEQ
Chief Clerk was $23,275.15.
147. Altair, the ED, OPIC, Donner, Aligned Protestants, and LCRA all participated in the
contested case hearing and bet-refitted from having a transcript for use in preparing written
closing arguments and responses.
148. The Application was found deficient by the ALJs in numerous respects, and the ADS
recommend its denial.
149. The transcript costs should be assessed 100% to Altair, as ajust and reasonable assessment
of costs.
ll. CONCLUSIONS OF LAW

The Commission has jurisdiction over the storage and processing of industrial solid waste
and hazardous waste and the authority to issue this permit under Texas Health and Safety
Code § 361.061.
Notice was provided in accordance with Texas Health and Safety Code Chapter 361 and
30 Texas Administrative Code chapter 39, and affected persons were provided an
opportunity to request a hearing on the Application in the manner required by law. Proper
notice of the preliminary hearing was given to affected persons pursuant to Texas
Government Code §§ 2001.031 and 2001052.
SOAH has jurisdiction to conduct a hearing and prepare a proposal for decision on
contested oases referred by TCEQ, Tex. Gov’t Code § 2003.047.
The Application was processed and the proceedings described herein were conducted in
accordance with applicable law and rules of 'l‘CliQ and SOAli, and all applicable
procedural requirements relating to notice, hearing. and due process oflui-v were rncL
u,
Altairhad the burden oi‘proof to show by a preponderance ot‘evidencc that the Application
satisfied all requirements ot'applieuble law and rules. 30 Tex. Admin Code § 8017(3),
6, The evidence in the record in support insufficient to meet the

of the Application is
requirements of applicable law for issuance ofsuch permit, including Texas lienlth and
Safety Code chapter 361 (the Solid Waste Disposal Act) and 30 '11:a Administrative Code
chapters 305 and 3351
complete permit Application that included all information required

Altair failed to submit a
hy Texas Health and Safety Code chapter 361 and 3011:a Administrative Code chapters
281 ttnd 305.
The Altair Facility would not he a captive facility, 30 Tex. Admin Code .8 335,103),
91 The Altair Facility would be a commercial hazardous waste managcment facility: Tex.
Health 6‘: Safety Code § 36100301); 30 Tex. Admin, Code § 335,1(29).
Altair failed to prove by a preponderance of the evidence that there is not a practical‘
economic, and feastble alternative to permitting the Altair Facility that is reasonably
available 30 Text Admin. Code §§ 8011760; 335.205(a)(2).
Altair did not prove

~
ot‘the evidence that the base of the containment
by n preponderance
structure of the Landfill will be separated from the under _ g regional aquifer by a
minimum of 10 feet of soil with {l hydraulic conductivity toward the aquifer not greater
than 1 x l()'7 cm/scc or a thicker interval of more permeable material which provides
equivalent or greater retardation to pollution migration as required by 30 Texas
Administrative Code § 33i2t’)4(e)(4),
12. Altair did not prove by a preponderance of the evidence that the first five feet of soil around
the proposed containment structure consists of soils that do not have either Unified Soil
Classification ofGW, GP, GM, GCr SW, SP: or SM or a hydraulic conductivity no greater
than 1 x 10'5 cut/sec, unless such soils will not facilitate lateral or vertical hydraulic
migration ofpollutants, as required by 30 Texas Administrative Code 335.204(e)<5),
‘
by a preponderance of the evidence that the Landfill

Altair did not prove will reasonably
minimize pessihle contamination of surface water and groundwater mandated by
30’1‘cxas Administrative Code § 33572031
showed by a preponderance ofthc evidence that the proposed liner system and final
Altair
cover for the Landfill will meet standards set by 30 Texas Administrative
Code 335,1s2ta‘it'12) and 33517.1(21)
The Application meets the financial assurance requirements for closure, postwlosurc. and
liability coverage as specified by 30 Texas Administrative Code § 335.179 and chapter 37,
subchapter P.
16. The Application meets the financial capability (financial assurance for operations)
requirements contained in 30 Texas Administrative Code § 305.50(a)(4)(8),
17. Ahair did not prove by a preponderance of the evidence that the waste expected to be
disposed at the Landfill is adequately characterized as required by 30 Texas Administrative
Code §§ 305.50(a)(9) and 335.152(a)(l) and that the Landfill will have cnsite capacity to
analyze waste in accordance with 40 Code of Federal Regulations § 246.13.
Altair proved by a preponderance of the evidence that the Landfill will collect and control
at least the water volume from active cells resulting from a 24-hour, IOU-year storm as
required by 30 Texas Administrative Code § 33517301).
The transportation information contained in the Application does not meet the requirements
of 30 Texas Administrative Code § 305.50(a)(8) with regard to transportation risks.
20. The transportation information contained in the Application does not meet the requirements
of 30 Texas Administrative Code § 305.50(a)(10) with regard to traffic requirements
2L The Application fails to demonstrate of 30 Texas Administrative

that the requirements
Code §§ 305.50(a)(12) and 335,183 will be met with regard to emergency response
capabilities in the local area.
22. The Application fails to demonstrate that the requirements of 30 Texas Administrative
Code §§ 305.50(a)(12) and 335.182 Will be met with regard to burden on the public
roadways.
23. The transportation information in the Application does not meet the requirements of
30 Texas Administrative Code §335.180(1)(C) with regard to risks associated with
transportation of hazardous waste to thc Altair Facility.
The Application demonstrates compliance with 30 Texas Administrative Code

§ 335.204(c)(6), prohibiting a landfill from locating within 1,000 feet of an established
residence, church, school, day care center, surface water body used for a public drinking
water supply, or dedicated public park.
25. The Application meets the air emission requirements of 30 Texas Administrative Code
§ 335.152 and 40 Code ofFederal Regulations Subparts AA, BB, and CC,
26. The Application demonstrates compliance with 30 Texas Administrative Code

$354730)
27. No Lranscript costs may be assessed against the ED or OPlC because the 'I‘CEQ‘S rules
prohibit the assessment of any cost to a. statutory party who is precluded by law from
appealing any ruling, decision, or other act of the Commission. 30 Tex. Admin, Code
§ 80.23(d)(2).
28. Factors to be considered in assessing transcript costs include: the party who requested the
transcript; the financial ability of the party to pay the costs; the extent to which the party
participated in the hearing; the relative benefits to the various parties of having a transcript;
the budgetary constraints of a state or federal adminislrativc agency participating in the
proceeding; and any other factor which is relevant to a just and reasonable assessment of
the costs, 30 Tex. Admin. Code § 30,23td)(l),
29 Considering the factors in 30 Texas Administrative Code § 80.23(d)(1), a just and

reasonable assessment of hearing transcript costs is to assign the full cost to Altair.
NOW, THEREFORE, BE IT ORDERED BY THE TEXAS COMMISSION ON

ENVIRONMENTAL QUALITY, IN ACCORDANCE WITH THESE FINDINGS OF
FACT AND CONCLUSIONS OF LAW, TIIAT:
The Application by Altair for Hazardous Waste Permit No. 50407 is DENIED.
Transcript costs shall be allocated 100% to Altair
The ChieF Clerk shnll forward a copy of this Order to all parties and issue the attached
permit
All other motions, requests for specific Findings of Fact or Conclusion ot’Law, and other
requests for general and specific relief, if not expressly granted heroin> are hereby denied
for want of merit
If any provision, sentence, clause, or phrase of this Order is for any reason held to be
invalid: the invalidity of any portion shall not affect the validity of the remaining portions
of this Order.
The effective date of this Order is the date the Order is final, as provided by Texas
Government Code § 200L144 and 30 Texas Administrative Code § 80273,
ISSUED:
Jon Niermann, Chairman For the Commission

AN ORDER
DENYING THE APPLICATION OF
ALTAIR DISPOSAL SERVICES, LLC, FOR A NEW NONCOMMERCIAL
HAZARDOUS WASTE LANDFILL IN
COLORADO COUNTY, TEXAS;
TCEQ Docket No. 2018—0013-IHW;
SOAI-I Docket No. 582-18—1960
On , the Texas Commission on Environmental Quality (Commission

or TCEQ) considered an application by Altair Disposal Services, LLC (Altair) for a new hazardous
waste permit to authorize construction and operation of a noncommercial, hazardous waste landfill
disposal facility in Colorado County, Texas (Altair Facility), A proposal for decision (PFD) was
presented by Administrative Law Judges (ALJs) Meitra Farhadi and Pratibha J. Shenoy with the
State Office of Administrative Hearings (SOAI-I), who conducted an evidentiary hearing
concerning the application on December 6-18, 2018, in Austin, Texas.
Afier considering the ALJs’ PFD, the Commission adopts the following findings of fact
and conclusions of law:
I. FINDINGS OF FACT
Background and Procedural History
1, On October 22, 2013, Altair filed an application with the TCEQ for permit no, 50407 to
construct and operate the Altair Facility (Application).

3. The Altair Facility would receive, and dispose by landfilling, hazardous and nonhazardous
incinerator and thermal desorption ash/residue generated off-site fiom commercial
hazardous waste treatment storage and disposal (TSD) facilities located in Texas, and
owned and operated by Clean Harbors, Inc. (Clean Harbors)
throughout the United States, Canada, Mexico, and Puerto Rico.
Through various affiliates and subsidiaries, Clean Harbors provides hazardous waste
its
management services, emergency spill response services, industrial cleaning and
maintenance services, and recycling and disposal sewices.
Altair is awholly owned subsidiary of Clean Harbors Disposal Services, Inc, (Clean
Harbors Disposal), which is a wholly owned subsidiary of Clean Harbors.
The Altair Facilitywould be located approximately six miles south of the intersection of
Interstate Highway (IH) 10 and Texas Highway (Hwy) 71, and two miles north of Altair,
Texas (Site),
Notice ofa pre-application public meeting was provided with a visible and accessible sign,
published in The Colorado Citizen and broadcast on September 18, 2013, and published in
The Banner Prerr Newrpaper on September 19, 2013. Notice was also provided to the
TCEQ.
On October 21, 2013, Altair held a pre-application meeting in Columbus, Texas.
10. The Site encompasses approximately 472 acres. The southern part of the Altair property
has been operated as a municipal solid waste landfill (MSW Facility) since approximately
1973 on a permit boundary of approximately 197 acres.
11. The northern part of the Site encompasses approximately 276 acres and would be the
permit boundary for the Altair Facility. Within those 276 acres, approximately 66 acres
would encompass the footprint of the landfill (Landfill).
12. The Landfill would include 12 cells, each divided into subcells, and would be constructed
above the grade of the ground, surrounded by a dike system. A final cover system would
be placed over individual cells as they reach capacity.
13. Altair paid the required application fee.
14. made a copy of the Application available for inspection and copying
Altair at the Nesbitt
Memorial Library, 529 Washington Street, Columbus, Texas, 78934.
15. The Executive Director (ED) of the TCEQ declared the Application to be administratively
complete on November 20, 2013.
16. The Final Drafl Hazardous Waste Permit No. 50407 (Permit) authorizes activities and
components associated with the storage, processing, and disposal of hazardous waste and
industrial solid waste at a noncommercial facility.
17. On November 25, 2013, the Chief Clerk of the TCEQ mailed the Notice of Receipt of
Application and Intent to Obtain an Industrial Hazardous Waste Permit (NORI) to adjacent
landowners, public officials, and other persons entitled to receive notice under TCEQ rules
or who requested notice, On December 6, 2013, the Chief Clerk also mailed the NORI to
individuals that participated in the October 21, 2013 pre-application meeting.
18. On December 19, 2013, the NORI was published in The Banner Press Newspaper.
19. The ED issued one administrative notice of deficiency (NOD) on November 5, 2013,
during the administrative review and two technical NODs on March 18,2014, and
March 4, 2015, to Altair during its technical review; in response, Altair provided updated
Application materials on November 6, 2013, July 8, 2014, June 26, 2015, and
November 12, 2015.
20. The ED found that the updated Application materials submitted by Altair addressed all
issues raised in the NODs.
21. A Notice of Public Meeting was mailed by first-class mail on October 20, 2016 by the
Chief Clerk to all persons on the mailing list
22. The Notice of Public Meeting was published in The Banner Press Newspaper on
November 2016, November 17, 2016, and November 24, 2016, and in The Colorado
10,
Citizen on November 9, 2016, November 16, 2016, and November 23, 2016.
23. The TCEQ held a public meeting on the Application on December 1, 2016, in Columbus,
Texas.
24. The public comment period for the Application closed on December 1, 2016.
25. On June 2, 2016, the ED issued a Technical Summary and Executive Director’s
Preliminary Decision.
26. The ED issued a Notice of Application and Preliminary Decision (NAPD) and a Final Drafl
Permit on June 27, 2016.
27. On June 29, 2016, the Chief Clerk mailed the NAPD to adjacent landowners, public
officials, and other persons entitled to receive notice under TCEQ rules or who requested
notice,
28. The NAPD was published Tribune-Herald and The Colorado County
in the Halletsville
Citizen on July 20, 2016, and in The Banner Press, The Eagle Lake Headlight, The Sealy
News, and The EastBernardExpress on July 21, 2016, The NAPD was also published in
Spanish in The Colorado County Citizen on July 20, 2016, and in The Banner Press and
The Eagle Lake Headlight on July 21, 2016. The NAPD was also broadcast on
July 20, 2016.
29. On November 14, 2017, the ED filed a Response to Public Comments and stated that no
changes were made in response to public comment.
30. On November 20, 2017, the ED declared the Application to be technically complete.
31. By dated January 9, 2018, Altair requested that the Application be directly referred
letter
to SOAH for a contested case hearing.
32. On February 5, 2018, the Chief Clerk mailed a Notice ofHean'ng and on February 6, 2018,
mailed an Amended Notice of Hearing to interested persons, public officials, and other
persons entitled to receive notice under TCEQ rules or who requested notice.
33. The Amended Notice of Hearing was published in Wharton Journal-Spectator,Halletsvzlle

TribuneAI-Ierald, The Colorado County Citizen, and the Jackson Co. HeroldiTrzbune on
February 21, 2018, March 7, 2018, March 14, 2018, and March 21, 2018, and The Banner
Press Newspaper and The Eagle Lake Headlight on February 22, 2018, March 8, 2018,
March 15, 2018, and March 22, 2018. The Amended Notice of Hearing was mailed to all
persons on the mailing list on February 21, 2018. The Amended Notice of Hearing was
also broadcast sixteen times between February 22, 2018, and March 23, 2018.
34. On March 28, 2018, SOAH ALJ Meitra Farhadi held a preliminary hearing in Columbus,
Texas.
35. At the preliminary hearing, the SOAH ALJ admitted the following as Parties to the
proceeding: Altair; the ED; the Office of Public Interest Counsel (OPIC); the Lower
Colorado River Authority (LCRA); Darmor Investments, LP (Darmor); Colorado County,
Colorado County Groundwater Conservation District, Alliance for a Clean Environment
(ACE) and Rice Consolidated Independent School District (collectively Aligned
Protestants); and United Methodist Women’s Organization (UMWO). A
request for party
status by Tom Etheridge was taken under advisement at the preliminary hearing by the ALJ
but denied in Order No. 1 on the grounds that Mr. Etheridge did not meet the definition of
an affected person.
36. During discovery in 2018, Aligned Protestants sought leave to enter the Site to conduct
surface and subsurface inspection of the soils within the Landfill footprint. AIJs Farhadi
and Pratibha J. Shenoy granted the request, and Aligned Protestants conducted discovery
at the Site in October and November 2018,
37. On November 29, 2018, the ALJs held a prehearing conference.

38. The hearing on the merits was held from December 6-18, 2018, at the SOAH offices, in
Austin, Texas.
39. Altair, the ED, Darmor, and Aligned Protestants pre-filed direct case testimony and
exhibits. Except for UMWO, all Parties participated in the hearing on the merits through
their designated representatives.
40. After the parties submitted written closing arguments, the record closed on March 8, 2019.
Commercial/Noncommercial Classification of Altair Facility
42. Commercial hazardous waste facilities owned (or effectively controlled by) Clean Harbors
accept waste on a commercial basis, then thermally treat the waste, stabilize the treatment
residue to meet the hazardous waste land disposal restrictions, and then dispose of the waste
by landfilling.
43. According to the Application and the Final Draft Permit, the only wastes that Altair would
accept at the Landfill would be: (1) incineration aslflresidue hazardous wastes from Clean
Harbors Deer Park, L.L.C, in Deer Park, Texas (Deer Park Facility) and (2) Thermal
Desorption Unit (TDU) process non-hazardous industrial waste from DuraTherm, Inc. in
San Leon, Texas (DuraTherm Facility), as well as non-hazardous treatment residue from
Clean Harbors-owned and operated mobile TDU treatment units that manage oil and gas
exploration and production waste in Texas.
44. The wastes generated Deer Park Facility are currently being disposed of at a
at the
hazardous waste landfill onsite which is expected to reach capacity in the next 5-7 years;
theTDU wastes generated at the DuraTherm Facility are being disposed of at third-party
non-hazardous landfills; and Clean Harbors does not currently have any mobile TDUs in
Texas.
45. The Deer Park Facility is permitted by the TCEQ as a commercial hazardous waste
management facility, and consists of a hazardous waste incinerator, a landfill, and storage
facilities.
46. The landfill at the Deer Park Facility is currently the only hazardous waste landfill in Texas
operated by any Clean Harbors entity.
47. The landfill at the Deer Park Facility is permitted as a commercial hazardous waste
management facility and only receives incineration ash/residue hazardous wastes from the
Deer Park Facility.
48. The Altair Facility is to be an extension of the commercial hazardous waste landfill unit on
the Deer Park Facility.
49. Commercial of the waste being incinerated at the Deer

industrial generators are the sources
Park These original generators pay a fee to Clean Harbors for those waste
Facility.
management services. and similarly, the original generators that send their waste to the
DuraTherm Facility for waste management also pay a fee to for those services.
50. A waste code is a code defined by the Environmental Protection Agency (EPA) to describe
a particular waste. Each type of hazardous waste has a particular code associated with it,
When a listed hazardous waste is treated, the residual from the treatment process maintains
the same waste code through to its final disposition, Therefore, the same waste codes will
carry through from the original generator, through the incineration or thermal treatment
facility, to the final disposal site at the Altair Facility.
51. When the Altair Facility receives wastes from a Clean Harbors facility, there will be an
inter-company accounting debit/credit ledger adjustment. No commercial invoicing will
occurs
52. A “charge” does not require a cash payment or an invoice.

53. Clean Harbors will track the financial transactions through cost accounting between the
various Clean Harbors subsidiaries. A
“charge” will be assessed to the related subsidiary
for the acceptance and disposal of waste and will ultimately be passed on to the outside
customers of Clean Harbors as part of their charges for incineration and disposal services.
54. The credits afforded to Altair by Clean Harbors (or one of its subsidiaries) to offset the
debits that Altair would incur for its operational expenses would bear a direct relationship
to the amount of waste managed at the Altair Facility. Therefore, those credits would be
consideration paid to Altair to manage waste for Clean Harbors subsidiaries.
55. Altair will accept hazardous waste for a charge.
56. The Altair Facility would be located on the same parcel of real property as the existing
MSW Facility, and contiguous to the MSW Facility.
57. The MSW Facility accepts waste for a charge on a commercial basis.
58. The MSW Facility and the proposed Altair Facility each have their own legal description
containing their own facility boundary, each have their own EPA identification number,
and each have their own unique TCEQ regulated entity number.
59. The MSW Facility would not be part of the Almir Facility.
60. Clean Harbors owns or effectively controls both the Altair Facility and the treatment
facilities (Deer Park Facility, DuraTherm Facility, and mobile TDUs).
61. Altair does not own or effectively control the Deer Park Facility or the DuraTheim Facility.
62. The sources of the waste being incinerated at the Deer Park Facility are commercial
generators, not under the ownership or control of either Altair or Clean Harbors.
63. The activity of treating hazardous wastes causes the treatment facility to become a
generator of the residue wastes.
64. The generators of the waste sent to the Altair Facility include the original commercial
generators who initially produced the waste, rendering it first subject to regulation; and the
Clean Harbors entities by way of their treatment processes
65. The Altair Facility would receive waste generated by entities other than Clean Harbors
entities.
66. The Altair Facility will not be a captive facility.
Analysis of Practical, Economic, and Feasible Alternatives that are Reasonably Available
67. Altair did not evaluate vertical expansion of the Deer Park Facility in conjunction with a
horizontal expansion,
68. Altair did not evaluate alternative locations for siting the proposed hazardous waste
landfill,
69. Altair did not evaluate existing commercial hazardous waste landfills capable of disposing
hazardous waste.
70. At least three commercial hazardous waste landfills exist which might be able to accept the
hazardous waste proposed to be disposed of by landfilling at the Altair Facility.
71. Altair did not perform a cost comparison to take into account the long-term cost of
designing, permitting, constructing, and operating the Altair Facility versus sending the
waste to one of the other facilities capable of accepting the waste.
72. Altair did notperform a cost comparison to analyze the cost of purchasing land closer to
the Deer Park Facility for permitting a new hazardous waste landfill versus the
transportation costs and risks associated with transporting hazardous waste 100 miles to
73. Altair did not adequately consider practical, economic, and feasible alternatives that are
reasonably available to manage the waste.
74. The ED did not evaluate if there was a practical, economic, and feasible alternative that is
reasonably available to manage the waste, because Altair did not provide the ED with
information to review.
Location and Siting Requirements
75. The Landfill is proposed to be located in Unit I, the Beaumont Formation, which is
composed primarily of gray to red-brown clay, typically classified as lean to fat clay, with
occasional pockets of trace to moderate amounts of fine sand and a layer of caliche of
varying thickness.
76. Unit I ranges in thickness from 10 feet to 35 feet across the Site, but is approximately
20 to 25 feet thick in the vicinity of the proposed Landfill.
77. Immediately below Unit I, Unit 11 contains the Lissie Formation, the uppermost part of the
Chicot aquifer, which is part of the Gulf Coast Aquifer System.
78. TCEQ technical guidance resources classify the Altair area as an aquifer recharge zone that
would likely present significant problems for the disposal of solid waste
79. In the 19905, the ED twice deemed portions of the Site unsuitable for proposed waste
disposal sites based on geological and site location concerns. The geology of the Site has
not changed in any significant respect since the 1990s
80. There is extensive sand and gravel mining in the three-county area surrounding the Site.
81. The TCEQ allows caliche in Colorado County to be used for below-ground disposal of
wastewaters from domestic sewage systems because the caliche has been found sufficiently
permeable for disposal,
82. Sandier pockets encountered in the subsurface investigations of the Landfill are variable in
composition, and where present, are found as sand lenses, typically in soil classified as
sandy clay to clayey sand. Samples of clay from the Landfill consistently have sand and
silt content of25%to 40%.
83. To be adequately protective of the aquifer in Unit I], the bottom of the Landfill must be
separated fi'om the top of the aquifer by at least a 10-foot thick barrier of soils with
hydraulic conductivity of no greater than 1 x 10’7 cm/ sec. In addition, the Landfill may not
have, in the first five feet of soil surrounding the containment structure, soils with Unified
Soil Classification of GW(well-graded gravel), GP (poorly-graded gravel), GM
(silty
gravel), GC
(clayey gravel), SW(well-graded sand), SP (poorly-graded sand), or SM
(silty
sand), or that have a hydraulic conductivity greater than 1 x 10’5 cm/sec.
84. Hydraulic conductivity values at the Landfill vary over several orders of magnitude. Soil
classifications vary across the Landfill, including samples taken from a single boring.
85. Maximum and minimum hydraulic conductivity values of soils at the Landfill are 3.3
x 10'6
and 2.1 x10'10 cm/sec, respectively, The average hydraulic conductivity value in the
Landfill footprint is 2.43 x 10'7 cm/secl The median is 1.81 x 10'8 cm/sec.
86. The Application characterized the hydraulic conductivity of Unit I soils at the Landfill by
using the geometric mean of the hydraulic conductivity values, which is 1.81 x 10'8 cm/sec.
87. The geometric mean has not been used to characterize soil data in any other permit
application for a new hazardous waste landfill approved by the ED or the Commission.
88. The geometric mean as presented in the Application distorts the hydraulic conductivity of
the Landfill site because it excludes values from sand samples, does not include any values
and is also presumed to represent the hydraulic conductivity of all untested and
for caliche,
uncharacterized soil at the Landfill.
89. In situ hydraulic conductivitytesting requested by the ED in the March 18, 2014 NOD was
not performed by Altair.
90. The record evidence fails to adequately characterize the hydraulic conductivity and soil
classifications ofthe soils in the Landfill footprint.
91. The record evidence does not establish whether the sand lenses found in Unit Iat the
Landfill could facilitate lateral or vertical hydraulic migration of pollutants to the aquifer
in Unit 11.
Financial Assurance/Information
92. A corporate gxarantee is an acceptable alternative mechanism for financial assurance.

93. A corporate guarantee from a publicly traded corporate parent is sufficient to meet the
financial capability (financial assurance for operations) requirements of an applicant.
94. The Application includes publicly available audited statements, estimated construction
costs for the Altair Facility of $6,654,419, and a letter of guarantee from Clean Harbors’
President and Chief Financial Officer certifying that Clean Harbors will act as guarantor
for Altair to ensure that Altair has the financial resources to construct and safely operate
95. Altair has sufficient financial resources to construct, safely operate, properly close, and
provide adequate closure and liability coverage for the Altair Facility.
Waste Analysis Plan and Waste Characterization

96. The only waste streams to be accepted at the Landfill are residue and other wastes from the
Deer Park Facility incineration process and dry thermal residue wastes from the
DuraTherm Facility, or from mobile TDUs operated by subsidiaries of Clean Harbors.
97. The wastes analyzed to develop the waste characterization for the Landfill were not
adequately representative of the current and potential types of incineration residue that may
be received.
98. The waste analysis inadequately described the incidental wastes that will be accepted at the
Landfill, including spent carbon, tellerettes, crushed drums, and contaminated soil.
99. The Landfill lacks an onsite laboratory to use in analyzing incoming loads to confirm that
the waste matches the characterization listed on the manifest and/or is not incompatible
with other waste streams,
Design Considerations
100. The Landfill will utilize a containment system consisting of a double composite liner on
the bottomand a final cover barrier on the top.
101‘ Altair’s use of a high-density polyethylene (HDPE) liner meets all chemical compatibility
requirements.
102, Altair performed adequate settlement analysis for the HDPE liner,
103. Altair will use a geosynthetic clay liner (GCL) as part of the composite barrier of the final
cover system.
104. Altair’s use of a GCL layer in the final cover system is appropriate fiom a physical,
mechanical, and chemical equivalency perspective.
Stormwater and Leachate
105. The proposed stormwater management plan for stormwater that will not come into contact
with waste (clean stonnwater) is adequate.
106. The Landfill was designed based on information available in 2013 regarding the
precipitation projection of 1 1.94 inches for a 24-hour, 100-year storm (Old 24/100 Storm).
107. In September 2018, the National Oceanic and Atmospheric Administration published
Atlas 14, a new precipitation atlas for Texas. Atlas 14 contains the best currently-available
precipitation forecasts and estimates the 24—hour, lOO-year storm in Colorado County will
result in approximately 14 inches of rain (New 24/ 100 Storm).
1081 Recent storm events in Colorado County have already exceeded the New 24/ 100 Storm,
including storms in mid-April 2015 (15 inches of rain); April 2016 (15 to 19 inches of
rain); and Hurricane Harvey in 2017 (county-wide average of 21 to 26 inches of rain).
109. As of the time the Application was deemed complete, the design of the Landfill was
adequate to manage at least the contaminated stormwater expected to be generated from
the Old 24/100 Storm standard then in effect, as well as managing leachate expected to be
generated by the storm and/or by regrlar operations.
110. Altair accepts the need to ensure the Landfill’s stormwater and leachate management plan
is revisited prior to constructionof the Landfill to ensure it will be adequate based on the
best information then available.
Traffic and Transportation Requirements
111. There will be approximately ten commercial trucks car‘Q/ing waste from the Deer Park
Facility to the Altair Facility seven days a week, and ten commercial trucks departing the
Altair Facility each day once they are emptied
112. The commercial trucks carrying the waste will have a trailer with a roll-off bin, and the
hazardous waste will be covered with a tarp.
113, The hazardous waste the trucks would carry will be a granular material that is
characteristically toxic, and there is the potential for the material to blow out of the bins
during transport.
114, The trucks will travel approximately 100 miles from the Deer Park Facility through
Houston heading west on IH 10 to Hwy 71 heading south, crossing over the Colorado
River, before reaching the Altair Facility.
115. The exposure potential from the hazardous waste blowing out of the bins during
transpoflation as it travels on roadways through Houston was not evaluated.
116. The potential exists for a truck to tip over and spill the hazardous waste into the Colorado
River.
117, Altair did not evaluate the potential exposure from a spill into the Colorado River.
1181 IH 10 and Hwy 71 are designated hurricane evacuation routes and the main route for
emergency crews to access various parts of the county.
119. The Application shows the major transportation route to be used for the transportation of
hazardous waste to and from the Altair Facility for a distance of five miles out from the
Altair Facility and did not evaluate the major intersection of IH 10 and Hwy 71 seven miles
from the Altair Facility.
120. Additional trucks will be brought in on a periodic basis to haul off accumulated leachate
and contaminated stormwater from the Altair Facility for treatment at the Deer Park
Facility,
1211 The Application does not contain information on the routes of travel from the mobile TDUs
to the Altair Facility.
122. The Application includes an exposure information report, which briefly describes the Altair
Facility and surrounding area, general operating procedures, and waste characteristics.
123. Once the waste leaves the Deer Park Facility or the DuraTherm Facility in transit to the
Altair Facility for disposal, the waste is considered as being transported to the unit.
124, Altair evaluated the potential for the public to be exposed to hazardous wastes from
releases only from the onsite transportation of waste to the unit at the Altair Facilityr
125. exposed to hazardous wastes during

Altair did not evaluate the potential for the public to be
transportation of waste to the unit outside the boundaries of the Altair Facility.
126. The Application does not address whether a burden would be imposed on public roadways
by vehicles traveling to and from the Altair Facility.
127. The first responder resources available in Colorado County are not trained to respond to
hazardous waste related emergencies or hazardous waste spills on roadways.
1281 The Application does not address whether emergency response capabilities are available
in the area in which the Altair Facility will be located that have the ability to manage a
reasonable worst-case emergency condition associated with the operation of the facility.
129, Local land use consideration of transportation risks under 30 Texas Administrative Code
§ 335.180 was conducted within a five-mile radius of the Altair Facilityi
Land Use Requirements

130. The area around the Altair Facility is primarily used for gravel pits, rice farming, soybean
farming, cattle grazing, and hunting purposes.
131. The Colorado River is approximately two miles from the Site and is used for recreation as
well as irrigation and water for cattle.
1321 There are no land use plans for the area within a five-mile radius of the Altair Facility
133. The Altair Facility will not be within 1,000 feet of an established residence, church, school,
day care center, surface water body used for a public drinking water supply, or dedicated
public park.
134. The MSW Facility at the Site does not receive hazardous waste, and no other industrial or
waste generating facilities are located within ‘/2 mile of the Altair Facility.
135. The Application contains a map identifying the major routes of travel within a five-mile
radius of the Altair Facility.
136. The evaluation of transportation risks is a necessary element of the evaluation of the
impacts ofa facility on local land use.
137. No land use compatibility determination was performed.

Air Emissions
138. The Application does not propose any processing vents; does not propose to manage waste
containing organics with concentrations of 10% or greater by weight; and the waste stream
proposed to be generated and managed onsite (leachate and contaminated stormwater)
would not contain volatile organic compounds.
139. Airborne particle emissions (i.e., dust) containing heavy metals such as lead or mercury,
might occur from trucks emptying their waste loads at the landfill.
140. To address particulate matter and other potential emissions, the Application includes the
following measures: trucks will be covered with a tarp during transport; trucks will dump
their loads directly into the active cell, and the load will be promptly spread and compacted
in the active cell by earthmoving equipment; the waste will be sprinkled with water three
times a day to prevent dust; if dust becomes visible, water or a dust-binding agent will be
applied; if problems persist, interim soil cover will be placed as soon as practicable to
minimize the wind dispersal. Additionally, it is expected that the presence of a perimeter
dike higher than the waste in the active landfill will mitigate against airborne emissions by
acting as a windbreak.
141. On occasion, waste will be placed at the site at a height above the top of the perimeter
dikes, at which point the dikes may be ineffective as a wind break.
142. The Application does not include an evaluation of the potential impact of airborne
emissions on nearby land uses such as ranching or farming, or on the Colorado River.
143. The Final Drafl Permit does not require daily cover at the Altair Facility.
Compliance History
144. Altair’scompliance histow classification score was Satisfactory for the period from
May 25, 2011 through May 25, 2016, and High for the period between October 1, 2013
and October 1, 2018.
Transcript Costs
145. Altair arranged for and paid a court reporter to report and transcribe the hearing on the
merits and to deliver the original copy of the transcript to the ALJs and two copies to the
TCEQ’s Chief Clerk.
146. The cost of reporting, preparing, and delivering the transcripts to the ALJs and the TCEQ
Chief Clerk was $23,275.15.
147. Altair, theED, OPIC, Darmor, Aligned Protestants, and LCRA all participated in the
contested case hearing and benefitted from having a transcript for use in preparing written
closing arguments and responses.
148. The Application was found deficient by the ALJs in numerous respects, and the ALJs
recommend its denial.
149. The transcript costs should be assessed 100% to Altair, as a just and reasonable assessment
of costs.
II. CONCLUSIONS OF LAW

The Commission has jurisdiction over the storage and processing of industrial solid waste
and hazardous waste and the authority to issue this permit under Texas Health and Safety
Code § 361.061.
Notice was provided in accordance with Texas Health and Safety Code Chapter 361 and
30 Texas Administrative Code chapter 39, and affected persons were provided an
opportunity to request a hearing on the Application in the manner required by law. Proper
notice of the preliminary hearing was given to affected persons pursuant to Texas
Government Code §§ 2001.051 and 2001.052.
SOAI-I has jurisdiction to conduct a hearing and prepare a proposal for decision on
contested cases referred by TCEQ. Tex. Gov’t Code §2003.047.
The Application was processed and the proceedings described herein were conducted in
accordance with applicable law and rules of TCEQ and SOAH, and all applicable
procedural requirements relating to notice, hearing, and due process of law were met.
Altair had the burden of proof to show by a preponderance of evidence that the Application
satisfied all requirements ofapplicable law and rules 30 Tex. Admin Code § 80.17(a)r
The evidence in the record in support of the Application is insufficient to meet the
requirements of applicable law for issuance of such permit, including Texas Health and
Safety Code chapter 361 (the Solid Waste Disposal Act) and 30 Texas Administrative Code
chapters 305 and 335.
Altair failed to submit a complete permit Application that included all information required
by Texas Health and Safety Code chapter 361 and 30 Texas Administrative Code chapters
281 and 305,
The Altair Facility would not be a captive facility. 30 Tex. Admin. Code § 335.1(13).
The Altair Facility would be a commercial hazardous waste management facility. Tex.
Health & Safety Code § 361.003(4); 30 Tex. Admin. Code § 335.1(29).
10. Altair failed to proveby a preponderance of the evidence that there is not a practical,
economic, and feasible alternative to permitting the Altair Facility that is reasonably
available. 30 Tex. Admin. Code §§ 80.17(a); 335.205(a)(2).
11. Altair did not proveby a preponderance of the evidence that the base of the containment
structure of the Landfill will be separated from the underlying regional aquifer by a
minimum of 10 feet of soil with a hydraulic conductivity toward the aquifer not greater
than 1 x 10'7 cm/sec or a thicker interval of more permeable material which provides
equivalent or greater retardation to pollution migration as required by 30 Texas
Administrative Code § 335,204(e)(4).
12. Altair did not prove by a preponderance of the evidence that the first five feet of soil around
the proposed containment structure consists of soils that do not have either Unified Soil
Classification ofGW, GP, GM, GC, SW, SP, or SM or a hydraulic conductivity no greater
than 1 x 10'5 cm/ sec, unless such soils will not facilitate lateral or vertical hydraulic
migration ofpollutants, as required by 30 Texas Administrative Code § 335.204(e)(5).
13. Altair did not prove by a preponderance of the evidence that the Landfill will reasonably
minimize possible contamination of surface water and groundwater as mandated by
30 Texas Administrative Code § 335.203.
14. Altair showed by a preponderance of the evidence that the proposed liner system and final
cover for the Landfill will meet standards set by 30 Texas Administrative
Code §§ 335.152(a)(12) and 335.173(a).
15. The Application meets the financial assurance requirements for closure, post-closure, and
liability coverage as specified by 30 Texas Administrative Code § 335.179 and chapter 37,
subchapter P.
16. The Application meets the financial capability (financial assurance for operations)
requirements contained in 30 Texas Administrative Code § 305.50(a)(4)(B).
17. Altair did not prove by a preponderance of the evidence that the waste expected to be
disposed at the Landfill is adequately characterized as required by 30 Texas Administrative
Code §§ 305.50(a)(9) and 335.152(a)(l) and that the Landfill will have onsite capacity to
analyze waste in accordance with 40 Code of Federal Regulations § 246.13.
18. Altair proved by a preponderance of the evidence that the Landfill will collect and control
at least the water volume from active cells resulting from a 24-hour, 100-year storm as
required by 30 Texas Administrative Code § 335.173(h).
of 30 Texas Administrative Code § 305.50(a)(8) with regard to transportation risks.
of30 Texas Administrative Code § 305.50(a)(10) with regard to traffic requirements.
Code §§ 305.50(a)(12) and 335.183 will be met with regard to emergency response
capabilities in the local area.
Code §§ 305150(a)(12) and 335.182 will be met with regard to burden on the public
roadways
23. The transportation information in the Application does not meet the requirements of
30 Texas Administrative Code §335.180(1)(C) with regard to risks associated with
transportation of hazardous waste to the Altair Facility.

§335.204(e)(6), prohibiting a landfill from locating within 1,000 feet of an established
residence, church, school, day care center, surface water body used for a public drinking
water supply, or dedicated public park.
25. The Application meets the air emission requirements of 30 Texas Administrative Code
§ 335.152 and 40 Code of Federal Regulations Subparts AA, BB, and CC.

§335.173(j).
27. No transcript costs be assessed against the ED or OPIC because the TCEQ’s rules
may
prohibit the assessment of any cost to a statutory party who is precluded by law from
appealing any ruling, decision, or other act of the Commission, 30 Tex, Admin. Code
§ 80,23(d)(2),
28. Factors to be considered in assessing transcript costs include: the party who requested the
transcript; the financial ability of the party to pay the costs; the extent to which the party
participated in the hearing; the relative benefits to the various parties ofhaving a transcript;
the budgetary constraints of a state or federal administrative agency participating in the
proceeding; and any other factor which is relevant to a just and reasonable assessment of
the costs, 30 Tex, Admin. Code § 80.23(d)(1).
29. Considering the factors in 30 Texas Administrative Code § 80.23(d)(1), a just and
reasonable assessment of hearing transcript costs is to assign the fiill cost to Altair.
NOW, THEREFORE, BE IT ORDERED BY THE TEXAS COMMISSION ON

ENVIRONMENTAL QUALITY, IN ACCORDANCE WITH THESE FINDINGS OF
FACT AND CONCLUSIONS OF LAW, THAT:
1, The Application by Altair for Hazardous Waste Permit No. 50407 is DENIED,
2. Transcript costs shall be allocated 100% to Altair.
3, The Chief Clerk shall forward a copy of this Order to all parties and issue the attached
permit
4, All other motions, requests for specific Findings of Fact or Conclusion of Law, and other
requests for general and specific relief, if not expressly granted herein, are hereby denied
for want of merit.
5. If any provision, sentence, clause, or phrase of this Order is for any reason held to be
invalid, the invalidity of any portion shall not affect the validity of the remaining portions
of this Order,
6, The effective date of this Order is the date the Order is final, as provided by Texas
Government Code § 2001.144 and 30 Texas Administrative Code § 80.273.
ISSUED:
Jon Niermann, Chairman For the Commission

ALJ's Proposal For Decision - CLEAN HARBORS/ALTAIR DISPOSAL SVCS

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Peoldl'l

State Ofﬁce of Administrative Hearings :JaqlllnN

May 7,2019 pzoldn

Mary Smith, General Counsel

12100 Park 35 Circle, Bldg. F, Room 4225

Re: SOAH Docket No. 58248-1960; I‘CEQ Docket N

Mutter of the Application of Altair Disposal Services, LLCfm‘ New Hazardous

The above—referenced matter will be considered by the Texas Commission on Environmental

AGENCY: Environmental Quality, Texas Commission on ('I'CEQ)

STATE OFFICE OF ADMINISTRATIVE AIIMINIS'I'RA'I‘I

HEARINGS ALJ MEITRA FARHADI

DEREK II. SEAL

MICHEI LF. R. MORRIS

PRANJAI, M. MEI ITA

17TH FL(X)R, I‘IVE HOUSTON CENTER 1401 MCKINNEY

(713) 752-8628 (PI-I)

COLORADO COUNTY GROUNDWATER

IN THE MATTER OF THE § BEFORE THE STATE OFFICE

A. CHARACTERIZATION AS A NONCOMMEIK L HAZARDOUS WASTE

:1. Waste for :1 Charge

ii. Genera‘or/Source of the W2

3. Darmor ................. ......................

2. Waste for :1 Charge

ii. Generator/Sou rce of the VV e..

iii. “Facility” ............................

a. Waste for a Charge

3. Waste for :1 Charge

3. Waste for a Charge

ii. Genemtar/Source of the Waste 28

PROIIIBITIOV 0N PERMITTING ON NEW HAZARDOUS WASTE

LOCATION STANDARDS, INCLUDIVG GEOLOGIC-

l. Hydraulic Conductivity and Scientific Notation of 10” cm/sec and

i. Interpretation of Scientiﬁc Notation in Commission rule

ii. Interaction of Standards in Commissmn rule

Concept of Geometric Mean 52

Soil Data and Application of Gcomctn’c Mean ................ . ...................... 62

b. Prior Landﬁll Applications and 0 Letters.

d. Hydraulic Conductivity and Grain Size Analyses, 2018 Data ...... 74

i. Only Historical Dam (Already Deemed Inadequate b the

v. The Geometric Men

Characterization of Caliehe at Site and

5. Summary ofALJs' Analysis Regarding Site Location Standards ...... 107

D. FINANCIAL ASSURANCE/FINANCIAL INFORMATION REQUIREMENTS

E. WASTE ANALYSIS PLAN AND WASTE CHARACTERIZATION............. 117

b. EPA Regulations Require Off-Site Factlmes to “EVE Testing

3. Aligned Protestants. 123

F. DESIGN .......... . .. 126

STORMWATER AND LEACILATE lSSUES.... 132

2. Aligned Protestants ....... ....... ........... 134

2:. Severe Rainfall Events. 2015-2017................. . 134

TRAFFIC AND TRANSPORTATION REQUIREMENTS 147

I. Altair ...................................... ..... 149

a. Transportation Exposure Analysis (Commission rule 30‘ 5000(8))

c. Burden on Public Roadways (Commission rule 305.50(u)(12)) and

in. Transportation R ~ ~~ ks in Assessing Land Use Compatibility

Aligned Protestants 156

a. Transportation Exposure Anal)

Commission rule 30." 5000(8))

1). Transportation Risks in Assessing Land Use Compatibility

9. Transportation Routes (Com ~ sston rule 30 50(a)(10)(D) 162 .

d. Burden on Public Roadways (Commission rule 305.50(a)(12)) and

1. LAND USE REQUIREMENTS 162

V. TRANSCRIPT COSTS ...................................................... 171