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Judges recommend denial of Clean Harbors application

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Judges recommend denial of Clean Harbors application

May 07, 2019 - 14:23
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(3:28 p.m. -- updated throughout with new background information.)

AUSTIN--A pair of administrative law judges early Wednesday afternoon recommended the Texas Commission on Environmental Quality deny a permit application for a hazardous waste landfill near Altair.

The recommendation, buried toward the end of the 172-page Proposal for Decision released by the two judges from the State Office of Administrative Hearings, includes findings that Altair Disposal Services/Clean Harbors, the companies seeking the permit, failed to prove that the base of the proposed containment structure of the landfill would be separated from the underlying aquifer by at least ten feet of soil with specific characteristics required by state law, and that the proposed Altair site fails to qualify as a non-commercial hazardous waste disposal site. 

Colorado County, the Colorado County Groundwater Conservation District, Rice Consolidated ISD, and A Coalition for a clean Environment (ACE), called "aligned protestants," in the parlance of the administrative hearings process, challenged Altair's permit application in 2017, along with Todd Barten, a local investor and owner of Darmor Investments who owned property near the proposed landfill site. 

Today's ruling is a source of relief for many in the Altair and Garwood areas, which are currently grappling with ongoing contamination at Skull Creek in the area. 

The proposal for decision now must go before the Texas Commission on Environmental Quality. The agency will then determine whether or not to accept the ruling of the administrative law judges, or to challenge it and proceed with permitting. 

Key findings

The judges found against Altair Disposal Services/Clean Harbors on each of the major issues the aligned protestants raised throughout the contested case hearing process, including that Altair Disposal Services' application didn't meet the standards to be considered non-commercial, that the water table was too close to the ground near the location of the facility, and that proposed lining mechanisms for waste pits proposed by Altair were not substantial enough to prevent discarge of contaminants in to the water table. 

Meitra Farhadi and Pratibha Shenay, the two admistrative law judges who have heard the contested case application since last March, wote, "the ALJs find that the Altair Facility will accept waste for a charge and will not meet either exception in being considered a commercial facility."

Under Texas law, in order for an application to operate a hazardous waste landfill to be considered "non-commercial," it must either accept waste at no charge, or only acept waste from entities it owns or otherwise corporately controls. 

The judges also found that the proposed landfill site would not be separated by the underlying aquifer by a minimum of ten feet of soil meeting specific characteristics required by state law. 

The judges also found that the permit application failed to show that Clean Harbors/Altair Disposal Services "will reasonably minimize possible contamination of surface water and goundwater," as mandated by state regulations. 

They also wrote, in their conclusions of law, that Altair Disposal Services "did not prove by a perpondenance of the evidence that waste expected to be disposed at the landfill is adequately characterized as required by [state regulations] and that the landfill will have onsite capacity to analyze waste," in accordance with state regulations. 

Background

Altair Disposal Services filed its initial application for a permit to locate a hazardous waste disposal adjacent to its existing site near Altair on Oct. 22, 2013. 

The Texas Commission on Environmental Quality issued a draft permit on Jan. 20, 2016. The application was sent to the State Office of Administrative Hearings on Jan. 9, 2018 at the request of Altair Dispoal Services for a contested case hearing. 

A preliminary hearing was conducted in Columbus last March 28, and the full contested case hearing was conducted in mid-December of last year. 

Final filings before administrative law judges were due in March. 

Not first time

This attempt by Altair Disposal Services to gain a permit for a hazardous waste landfill wasn't the first attempt to do so. 

When Laidlaw/Tricil Environmental owned the faciity, they announced similar plans in 1991. That resulted in various litigation. In August, 1992, a state district judge stopped Laidlaw/Tricil from continuing constructuon on a hazardous waste permit pending related litigation against the Texas Water Commission. 

On June 27, 1997, the Texas Natural Resource Conservation Commission (TNRCC), forrunner of the TCEQ, rejected Ladlaw's permit application as defiient. 

On July 16, 1996, Laidlaw was again informed by TNRCC that their revised application was deficient. 

On January 27, 1998, Laidlaw announced it would withdraw its application for a hazardous waste facility and would likely close its Altair solid waste facility within 15-16 months. 

Altair Disposal Services filed its initial application for a permit to locate a hazardous waste disposal adjacent to its existing site near Altair on Oct. 22, 2013. 

The Texas Commission on Environmental Quality issued a draft permit on Jan. 20, 2016. The application was sent to the State Office of Administrative Hearings on Jan. 9, 2018 at the request of Altair Dispoal Services for a contested case hearing. 

A preliminary hearing was conducted in Columbus last March 28, and the full contested case hearing was conducted in mid-December of last year