Baxter Oil Service, Ltd. v. Texas Commission on Environmental Quality

Opinion

ACCEPTED 03-15-00446-CV 7820211 THIRD COURT OF APPEALS AUSTIN, TEXAS 11/13/2015 12:45:45 PM JEFFREY D. KYLE CLERK No. 03-15-00446-CV

FILED IN IN THE 3rd COURT OF APPEALS AUSTIN, TEXAS 11/13/2015 12:45:45 PM THIRD COURT OF APPEALS JEFFREY D. KYLE Clerk

AT AUSTIN

BAXTER OIL SERVICE, LTD. Appellant

v.

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY, Appellee.

Appeal from the 345th Judicial District Court, Travis County, Texas

APPELLEE’S BRIEF

KEN PAXTON PRISCILLA M. HUBENAK Attorney General of Texas Chief, Environmental Protection Division CHARLES E. ROY First Assistant Attorney THOMAS H. EDWARDS General Lead Counsel Assistant Attorney General JAMES E. DAVIS Tex. Bar No. 06461800 Deputy Attorney General for Thomas.Edwards@TexasAttorney Civil Litigation General.gov cont. CRAIG J. PRITZLAFF Assistant Attorney General Tex. Bar No. 24046658 Craig.Pritzlaff@TexasAttorney General.gov

Office of the Attorney General Environmental Protection Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 Tel: (512) 463-2012 Fax: (512) 320-0911

ATTORNEYS FOR APPELLEE, TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

-ii- IDENTITY OF PARTIES & COUNSEL

Appellee would supplement Appellant’s list of counsel, as follows:

PARTY ATTORNEYS

Texas Commission on KEN PAXTON Environmental Quality Attorney General of Texas

CHARLES E. ROY First Assistant Attorney General

JAMES E. DAVIS Deputy Attorney General for Civil Litigation

PRISCILLA M. HUBENAK Chief, Environmental Protection Division

THOMAS H. EDWARDS Lead Counsel Assistant Attorney General Tex. Bar No. 06461800 Thomas.Edwards@ TexasAttorneyGeneral.gov

-iii- CRAIG J. PRITZLAFF Assistant Attorney General Tex. Bar No. 24046658 Craig.Pritzlaff@ TexasAttorneyGeneral.gov

Office of the Attorney General Environmental Protection Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 Tel: (512) 463-2012 Fax: (512) 320-0911

-iv- TABLE OF CONTENTS

IDENTITY OF PARTIES & COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -iii-

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -x-

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -xvii-

STATEMENT ON ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . -xviii-

ISSUES PRESENTED FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -xix-

STATEMENT OF FACTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Issue 1: Under existing precedent, the Order is final, unappealable, and immune from collateral attack. (Response to Section II of Appellant’s Brief.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

A. The order was final and appealable shortly after it was issued. . . 6

B. Baxter received actual notice of the Order. . . . . . . . . . . . . . . . . . . . . 7

C. The deadline for appeal has passed and the Order is now unappealable. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

D. The statutory deadline is jurisdictional. . . . . . . . . . . . . . . . . . . . . . . . 8

E. The Order is not subject to collateral attack. . . . . . . . . . . . . . . . . . . . 9

-v- F. Any exceptions that might allow collateral attack do not apply here. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Issue 2: Baxter received adequate Due Process. (Response to Sections I.C and I.D of Appellant’s Brief.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

A. The Order is not misleading, provides adequate information and is not void. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

1. The Order provides ample information about the Site and the parties involved.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

2. The TCEQ is not required to include appellate advice in its orders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

3. The Order did not mislead expressly or by implication. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

B. Baxter seeks to expand its rights under the Due Process Clause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

1. The personal service requirement has been met. . . . . . . . . . . 18

2. The Order meets the three-part balancing test of Mathews v. Eldridge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

a. The first factor—the private interest that will be affected by the official action—weighs heavily against Baxter .. . . . . . . . . . . 22

-vi- b. The second factor—the risk of erroneous deprivation and probable value, if any, of additional or substitute safeguards–weighs against Baxter . . . . . . . . . . . . . . . . . . . . . 24

c. The third factor—the public interest—weighs decisively against Baxter.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

3. The Mathews test has not been universally applied. . . . . . . . . 29

4. The Gonzalez line of cases is distinguishable.. . . . . . . . . . . . . . 30

a. Gonzalez involved incorrect notice rather than a lack of notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

b. The Gonzalez precedents are not binding but are “congruent” with Texas law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

c. In any event, the present case does not fall under the Gonzalez/Loudermilk precedent.. . . . . . . . . . . . . . . . . . . . . . . 34

C. Any Due Process notice violation has been cured by subsequent correct notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

D. The cases that Baxter cites are inapposite. . . . . . . . . . . . . . . . . . . . . 37

1. Cases involving the absence of notice, rather than the adequacy of notice, are inapposite. . . . . . . . . . . . . . . . . . . . . . . 38

2. Cases involving service at the commencement of an action are inapposite. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

-vii- 3. Cases involving significant events during a proceeding are inapposite. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

4. Cases involving administrative decisions without an appealable final order are irrelevant. . . . . . . . . . . . . . . . . . . . . 41

5. Due Process may enhance statutory notice requirements, but the cited cases are inapposite. . . . . . . . . . . 43

Issue 3: Even if the Order had been issued in violation of Due Process it is not void but merely voidable—and it still must be timely appealed for the courts to have jurisdiction. (Response to both sections of Appellant’s Brief.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

A. Even if the Order was misleading and had been issued in violation of Due Process, it was not void; it still had to be timely appealed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

1. The courts cannot acquire jurisdiction by mistake or accident. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

2. The courts cannot acquire jurisdiction because a party did not understand the law.. . . . . . . . . . . . . . . . . . . . . . . 47

3. The courts cannot gain jurisdiction by consent or through estoppel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

4. The Texas rule concerning misleading notice is not universally followed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

B. Baxter’s cited cases do not support the proposition that the Order is void. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

-viii- 1. Security State Bank and Trust involved a complete lack of notice rather than incomplete notice. . . . . . . . . . . . . . . . . . . 51

2. New York Life Insurance involved service at the wrong address. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

3. In re Guardianship of B.A.G. involved a court’s lack of personal jurisdiction rather than notice of a right to appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

APPENDIX

-ix- INDEX OF AUTHORITIES

CASES

Alamo Express, Inc. v. Union City Transfer, 309 S.W.2d 815 (Tex. 1958).. . . . 10

Barrera-Montenegro v. United States, 74 F.3d 657 (5th Cir. 1996). . . . . . . . . . 38

Baxter v. Colvin, 14-CV-01306-WHO, 2014 WL 6985149 (N.D. Cal. Dec. 10, 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Boddie v. Connecticut, 401 U.S. 371 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Bradford v. Edelstein, 467 F. Supp. 1361 (S.D. Tex. 1979). . . . . . . . . . . . . . . . . 41

Brooks v. Apfel, 71 F. Supp. 2d 858 (N.D. Ill. 1999). . . . . . . . . . . . . . . . . . . 32, 33

Browning v. Prostok, 165 S.W.3d 336 (Tex. 2005).. . . . . . . . . . . . . . . . . . . . . . . . 9

Butland v. Bowen, 673 F. Supp. 638 (D. Mass. 1987). . . . . . . . . . . . . . . . . . . . . 49

Castillo v. State, No. 03-11-00503-CV, 2012 WL 3793276 (Tex. App.— Austin Aug. 29, 2012, no pet.) (mem. op.).. . . . . . . . . . . . . . . . . . . . . . . . 10

Chocolate Bayou Water Co. & Sand Supply v. Tex. Natural Res. Conserv. Comm’n, 124 S.W.3d 844 (Tex. App.—Austin 2003, pet. denied). . . . 11, 17

Chow v. Dole, 677 S.W.2d 220 (Tex. App.—Houston [1st Dist.] 1984, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

-x- City of Celina v. Dynavest Joint Venture, 253 S.W.3d 399 (Tex. App.— Austin 2008, no pet.), rev’d on other grounds, 392 S.W.3d 88 (Tex. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

City of Dallas v. VSC, LLC, 347 S.W.3d 231 (Tex. 2011). . . . . . . . . . . . 33, 37, 43

City of W. Covina v. Perkins, 525 U.S. 234 (1999). . . . . . . . . . . . . . . . . . . . . . . . 42

City of Waco v. Roddey, 613 S.W.2d 360 (Tex. App.—Waco 1981, no writ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Cleveland Bd. of Educ. v. Donnelly, 470 U.S. 532 (1985).. . . . . . . . . . . . . . . . . . 43

Corzelius v. Harrell, 186 S.W.2d 961 (Tex. 1945). . . . . . . . . . . . . . . . . . . . . . . . . 9

Crawford v. McDonald, 33 S.W. 325 (Tex. 1895).. . . . . . . . . . . . . . . . . . . . . . . . . 9

Daniel v. Dallas Indep. Sch. Dist., 351 S.W.2d 356 (Tex. Civ. App.—El Paso 1961, writ ref’d n.r.e.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Dusenbery v. United States, 534 U.S. 161 (2002). . . . . . . . . . . . . . . . . . . . . . . . . 42

Fed. Commc’ns Comm’n v. Pottsville Broad. Co., 309 U.S. 134 (1940). . . . . . . . 42

Fuentes v. Shevin, 407 U.S. 67 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Goldberg v. Kelly, 397 U.S. 254 (1970). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 24

Gonzalez v. Sullivan, 914 F.2d 1197 (9th Cir. 1990). . . . . . . . . . . . . . . . . . . 30-32

Hayes v. Pin Oak Petroleum, Inc., 798 S.W.2d 668 (Tex. App.—Austin 1990, writ denied) (per curiam). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

-xi- Hernandez v. Tex. Dep’t of Ins., 923 S.W.2d 192 (Tex. App.—Austin 1996, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Hess & Clark, Div. of Rhodia, Inc. v. Food & Drug Admin., 495 F.2d 975, 983 (D.C. Cir. 1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Houston v. Fore, 412 S.W.2d 35 (Tex. 1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

In re Guardianship of B.A.G., 794 S.W.2d 510 (Tex. App.—Corpus Christi 1990, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 50, 54, 55

In re Ruffalo, 390 U.S. 544 (1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123 (1951). . . . . . . . . 26

Jolly v. State, 856 S.W.2d 859 (Tex. App.—Austin 1993, writ denied).. . . . . 10

Jones v. Flowers, 547 U.S. 220 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

L.B.L. Oil Co. v. Int’l Powers Servs., Inc., 777 S.W.2d 390 (Tex. 1989) (per curiam). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Langdale v. Villamil, 813 S.W.2d 187 (Tex. App.—Houston [14th Dist.] 1991, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Lesikar v. Rappeport, 33 S.W.3d 282 (Tex. App.—Texarkana 2000, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982). . . . . . . . . . . . . . . . . . . . . 43

Lopez v. Lopez, 757 S.W.2d 721 (Tex. 1988) (per curiam). . . . . . . . . . . . . . . . . 40

-xii- Loudermilk v. Barnhart, 290 F.3d 1265 (11th Cir. 2002).. . . . . . . . . . . . . . . . . . 32

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). . . . . . . . . . . . . . . . . . . . . . . 32

M.E.K. v. R.L.K., 921 So.2d 787 (Fla. Dist. Ct. App. 2006). . . . . . . . . . . . . . . . 29

Mathews v. Eldridge, 424 U.S. 319 (1976). . . . . . . . . . . . . . . . . . 19-22, 24, 26, 27

Medina v. California, 505 U.S. 437 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Memphis Light, Gas, & Water Div. v. Craft, 436 U.S. 1 (1978).. . . . . . . . . . . . . 41

Mennonite Bd. of Missions v. Adams, 462 U.S. 791 (1983). . . . . . . . . . . . . . . . . 51

Misium v. Misium, 902 S.W.2d 195 (Tex. App.—Eastland 1995, writ denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Moss v. Malone, 880 S.W.2d 45 (Tex. App.—Tyler 1994, writ denied). . . . . 40

Mosser v. Plano Three Venture, 893 S.W.2d 8 (Tex. App.—Dallas 1994, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (1950). . . . . . . . 18, 19

N. Alabama Exp., Inc. v. United States, 585 F.2d 783 (5th Cir. 1978). . . . . . . . 42

Navato v. Sletten, 560 F.2d 340 (8th Cir. 1977). . . . . . . . . . . . . . . . . . . . . . . . . . 42

New York Life Ins. Co. v. Brown, 84 F.3d 137 (5th Cir. 1996). . . . . 17, 41, 50, 53

Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80 (1988). . . . . . . . . . . . . . . . . . 38, 51

-xiii- Petro-Chem. Transp., Inc. v. Carroll, 514 S.W.2d 240 (Tex. 1974). . . . . . . . . . . 29

PNS Stores, Inc. v. Rivera, 379 S.W.3d 267 (Tex. 2012). . . . . . . . . . . . . . . . . . . 52

Potvin v. Keller, 313 So.2d 703 (Fla. 1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Pub. Util. Comm’n of Tex. v. Allcomm Long Distance, Inc., 902 S.W.2d 662 (Tex. App.—Austin 1995, writ denied). . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Rotello v. State, 492 S.W.2d 347 (Tex. Civ. App.—Houston [1st Dist.] 1973, writ ref’d n.r.e.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Sec. State Bank & Trust v. Bexar Cnty., 397 S.W.3d 715 (Tex. App.—San Antonio 2012, pet. denied).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 50-52

Sierra Club v. U.S. Nuclear Regulatory Comm’n, 862 F.2d 222 (9th Cir. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Tex. Alcoholic Beverage Comm’n v. Sfair, 786 S.W.2d 26 (Tex. App.—San Antonio 1990, writ denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Tex. Comm’n on Envtl. Quality v. Exxon Mobil Corp., et al., No. 03-14- 00667-CV (Tex. App.—Austin 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 27

Tex. Comm’n on Envtl. Quality v. Kelsoe, 286 S.W.3d 91 (Tex. App.— Austin 2009, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Tex. Dep’t of Transp. v. T. Brown Constructors, Inc., 947 S.W.2d 655 (Tex. App.—Austin 1997, writ denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Tex.-N.M. Power Co. v. Tex. Indus. Energy Consumers, 806 S.W.2d 230 (Tex. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

-xiv- TJFA, L.P. v. Tex. Comm’n on Envtl. Quality, 368 S.W.3d 727 (Tex. App.—Austin 2012, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Torres v. Shalala, 48 F.3d 887 (5th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . 34, 35

Tramco Enters., Inc. v. Indep. Am. Sav. Ass’n, 739 S.W.2d 944 (Tex. App.—Fort Worth 1987, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Valero S. Tex. Processing Co. v. Starr Cnty. Appraisal Dist., 954 S.W.2d 863 (Tex. App.—San Antonio 1997, pet. denied). . . . . . . . . . . . . . . . . . . 44

Villegas v. Carter, 711 S.W.2d 624 (Tex. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . 40

Walker v. City of Hutchinson, Kan., 352 U.S. 112 (1956). . . . . . . . . . . . . . . . . . 38

Walter West, P.E. v. Tex. Comm’n on Envtl. Quality, 260 S.W.3d 256 (Tex. App.—Austin 2008, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Williams v. Holley, 653 S.W.2d 639 (Tex. App.—Waco 1983, writ ref’d n.r.e.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Wilmer-Hutchins Indep. Sch. Dist. v. Sullivan, 51 S.W.3d 293 (Tex. 2001). . . 48

Wolff v. McDonnell, 418 U.S. 539 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

STATUTES

42 U.S.C. § 405(b)(3)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

42 U.S.C. § 423(d)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Tex. Gov’t Code § 311.034. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

-xv- Tex. Health & Safety Code § 361.188. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 27

Tex. Health & Safety Code § 361.276. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Tex. Health & Safety Code § 361.321. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28

Tex. Health & Safety Code § 361.321(c).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 37

Tex. Health & Safety Code § 361.322(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Tex. Health & Safety Code § 361.322(a), (g)-(h), (i)-(k).. . . . . . . . . . . . . . . . . 28

Tex. Health & Safety Code § 361.343. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Tex. Health & Safety Code §§ 361.181-.188.. . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Tex. Occ. Code § 1101.705(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Tex. Occ. Code § 1101.706(3).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Tex. Water Code § 5.351.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

RULES

Tex. R. App. P. 38.1(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Tex. R. App. P. 39.1.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -xviii-

ADMINISTRATIVE MATERIALS

5 J. Stein, G. Mitchell & B. Mezines, Administrative Law 48-10 (1988).. . . . . . 7

-xvi- STATEMENT OF THE CASE

Appellee would add the following to Appellant’s statement:

The trial court order being appealed from is the Order Granting

TCEQ’s Plea to the Jurisdiction as to Baxter’s Motion for Summary

Judgment, CR 1952.

-xvii- STATEMENT ON ORAL ARGUMENT

Oral argument would not assist in the determination of this appeal.

The dispositive issues have been authoritatively decided and the facts and

legal arguments will be adequately presented in the briefs and the record.

Tex. R. App. P. 39.1.

If oral argument is granted to Appellant, then Appellee asks to partici-

pate.

-xviii- ISSUES PRESENTED FOR REVIEW

Issue 1: Under existing precedent, the Order is final, unappealable, and

immune from collateral attack. (Response to Section II of Appellant’s Brief.)

Issue 2: Baxter received adequate Due Process. (Response to Sections

I.C and I.D of Appellant’s Brief.)

Issue 3: Even if the Order had been issued in violation of Due Process

it is not void but merely voidable—and it still must be timely appealed for

the courts to have jurisdiction. (Response to both sections of Appellant’s

Brief.)

-xix- STATEMENT OF FACTS

The trial court granted the Appellee’s Plea to the Jurisdiction and

dismissed the Appellant’s Motion for Summary Judgment based upon

jurisdictional facts, not upon the merits of the case. Appellant offers

statements going to the merits of its defense, but these are not “facts

pertinent to the issues,” within the meaning of Tex. R. App. P. 38.1(g).

Accordingly, Appellee offers the following Statement of Facts:

(The Administrative Record for this case is on a 32 GB flash drive that

has previously been provided to this Court in another appeal: Tex. Comm’n

on Envtl. Quality v. Exxon Mobil Corp., et al., No. 03-14-00667-CV (Tex.

App.—Austin, 2015). Pertinent pages from that record are attached to this

brief in the Appendix; they will be cited as AR ___.)

From 1982 to 2008, Appellee the Texas Commission on Environmental

Quality (“TCEQ”) conducted environmental investigations of a site in

Gregg County, Texas, that came to be known as the Voda Petroleum, Inc.

State Superfund Site (“Site”). These inspections started when the Site was

1 in operation as a waste oil recycling facility, CR 1191-1201, and continued

as Superfund investigations after the Site was abandoned, CR 1201-04,

1215-18. The Appellant, Baxter Oil Service, Ltd. (“Baxter”), was notified of

the proposed listing of the Site on the State Registry of Superfund sites, AR

30601-05; of a public meeting and opportunity to comment on the pro-

posed remedy, AR 17912-18, 17945-54; and of the opportunity to fully fund

or perform the remedial activities and clean up the Site, AR 33053-64.

The TCEQ issued an administrative order (“Order”) concerning the

Site on February 12, 2010. CR 1596-1675, 1657. The Order named Baxter as

one of the “potentially responsible parties” for the Site. CR 1596-1612, 1598.

The Order found that the Site had to be cleaned up and concluded that the

potentially responsible parties were “responsible parties” under the law.

Order sec. III.A at CR 1616. Following a motion for rehearing, the Order

became final by operation of law on April 8, 2010. AR 10.

Copies of the Order were sent to the named parties, including Baxter,

by Certified Mail on February 19, 2010. CR 1676-94, 1679. Baxter received

2 the Order on or about February 26, 2010. CR 1695.

Various parties appealed the Order by filing petitions for judicial

review in the district courts of Travis County. Those cases were consoli-

dated into the present case in the 345th Judicial District. CR 221-35. The

TCEQ filed a counter-petition and third-party petition seeking cost recov-

ery against the parties named in the Order, including Baxter, and other

parties not named in the Order. CR 283-424, 303. Baxter filed an Original

Answer, containing general and verified denials. CR 578-81. However,

Baxter did not request judicial review of the Order. Id. Baxter has never

requested judicial review of the Order.

Baxter filed a motion for summary judgment seeking to be dismissed

on the grounds that it had not shipped solid waste to the Site and lacked

the requisite intent to dispose, and thus was not liable under the law. CR

1458-1581, 1461. The TCEQ filed a plea to the jurisdiction asserting that the

Order was final and unappealable as to Baxter and was therefore not

subject to collateral attack. CR 1582-1703. Baxter responded that the Order

3 violated Due Process, was void, and could be collaterally attacked. CR

1843-86. The Court granted the TCEQ’s plea and dismissed Baxter’s motion

for summary judgment. CR 1952. Baxter appealed. CR 1953-55.

4 SUMMARY OF THE ARGUMENT

The Order is final and unappealable because Baxter was served with a

copy of the Order but has never filed a petition for review, and the statu-

tory waiver of sovereign immunity for the review has expired. Baxter seeks

to collaterally attack the Order through a motion for summary judgment,

but the District Court lacks jurisdiction to consider that action.

Baxter asserts that the Order violates the Due Process Clause, and is

void, because it fails to advise parties of the consequences of the Order and

of their right to appeal. However, the Order is detailed and specific, and

TCEQ is not required to provide advice to parties about their right to

appeal. Any Due Process violation related to lack of notice has been cured

because the Order has been served on Baxter several times.

Even if the Order violated Due Process, it is not void but merely

voidable. It still must be appealed within the statutory deadlines, if the

courts are to have jurisdiction.

5 ARGUMENT

I.

Issue 1: Under existing precedent, the Order is final, unappealable,

and immune from collateral attack. (Response to Section II of Appellant’s

In this case the Appellant seeks to collaterally attack a final administra-

tive order after the statutory deadline for appealing the order has passed.

This attack is barred by sovereign immunity. The courts lack jurisdiction to

consider such an action except under a specific waiver of sovereign immu-

nity, and that waiver has expired.

A. The order was final and appealable shortly after it was issued.

The Order became final and appealable when a motion for rehearing

was overruled by operation of law on April 8, 2010. See AR 10. “Adminis-

trative orders are generally final and appealable if ‘they impose an obliga-

tion, deny a right or fix some legal relationship as a consummation of the

administrative process.’” Tex.-N.M. Power Co. v. Tex. Indus. Energy Consum-

6 ers, 806 S.W.2d 230, 232 (Tex. 1991), quoting Sierra Club v. U.S. Nuclear

Regulatory Comm’n, 862 F.2d 222, 224 (9th Cir. 1988). “[C]ourts … should

treat as final a decision ‘which is definitive, promulgated in a formal

manner and one with which the agency expects compliance.’” Tex.-N.M.

Power Co., id., quoting 5 J. Stein, G. Mitchell & B. Mezines, Administrative

Law 48-10 (1988). This Order meets those criteria. It was timely appealed by

many parties in this case, as shown by the papers on file herein, and its

appealability at that time has not been disputed.

B. Baxter received actual notice of the Order.

Baxter received a copy of the Order by certified mail shortly after it

was issued. CR 1695. Thus, Baxter was notified both of the contents of the

Order and the fact that it had been issued. Precedents involving lack of

service, inadequate service, or lack of capacity to be served are irrelevant to

the current case because Baxter had both notice and capacity.

C. The deadline for appeal has passed and the Order is now unappealable.

The deadline for filing an appeal of a Superfund order issued under

7 Tex. Health & Safety Code § 361.188 is “the 30th day after the date of the

ruling, order, decision, or other act of the governmental entity whose

action is appealed,” id. § 361.321(c). 1 That deadline has long since passed.

Accordingly, the Order is final and unappealable as to Baxter, and all its

findings and conclusions are binding upon Baxter as a matter of law.

D. The statutory deadline is jurisdictional.

The courts lack jurisdiction to consider a late-filed petition for judicial

review of an administrative order. Tex. Comm’n on Envtl. Quality v. Kelsoe,

286 S.W.3d 91, 97 (Tex. App.—Austin 2009, pet. denied) (petition for

judicial review filed after statutory deadline “was untimely and did not

invoke the trial court’s jurisdiction over any of [the petitioner’s] com-

plaints.”) (citations omitted). Accord, TJFA, L.P. v. Tex. Comm’n on Envtl.

Quality, 368 S.W.3d 727, 736 (Tex. App.—Austin 2012, pet. denied). See also,

Walter West, P.E. v. Tex. Comm’n on Envtl. Quality, 260 S.W.3d 256, 263 (Tex.

1 The correct section of the Health and Safety Code under which this Order should be appealed is an issue currently under consideration by this Court. See infra notes 2-3 and accompanying text. However, under either possible section, the deadline has passed.

8 App.—Austin 2008, pet. denied) (petitions for judicial review of TCEQ

decision, not filed within 30-day deadline under Tex. Water Code § 5.351,

were untimely and this failure “deprived the trial court of jurisdiction to

consider appellants’ petitions for judicial review.”) (citations omitted). See

also Tex. Gov’t Code § 311.034 (“Statutory prerequisites to a suit … are

jurisdictional requirements in all suits against a governmental entity.”).

E. The Order is not subject to collateral attack.

Baxter’s motion for summary judgment constitutes a collateral attack

on the Order. See Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005) (“A

collateral attack is an attempt to avoid the binding force of a judgment in a

proceeding not instituted for the purpose of correcting, modifying, or

vacating the judgment, but in order to obtain some specific relief which the

judgment currently stands as a bar against.”), citing Crawford v. McDonald,

33 S.W. 325, 327 (Tex. 1895) (other citations omitted).

An administrative order that is regular on its face is not subject to

collateral attack. See Corzelius v. Harrell, 186 S.W.2d 961, 967 (Tex. 1945) and

9 cases cited therein. See also Pub. Util. Comm’n of Tex. v. Allcomm Long

Distance, Inc., 902 S.W.2d 662, 666 (Tex. App.—Austin 1995, writ denied)

(“Generally, an agency’s final order, like the final judgment of a court of

law, is immune from collateral attack.”), citing Alamo Express, Inc. v. Union

City Transfer, 309 S.W.2d 815, 827 (Tex. 1958) (concluding that collateral

attack on Railroad Commission order was impermissible because adminis-

trative statutes provided sole method of attack). See also, Castillo v. State,

No. 03-11-00503-CV, 2012 WL 3793276 at *4 (Tex. App.—Austin Aug. 29,

2012, no pet.) (mem. op.) (“A final order of the [agency] that is valid on its

face is not subject to collateral attack in a subsequent enforcement proceed-

ing.”), quoting Jolly v. State, 856 S.W.2d 859, 861 (Tex. App.—Austin 1993,

writ denied).

F. Any exceptions that might allow collateral attack do not apply here.

The exceptions to the no-collateral attack rule are very limited. None

apply here. See Allcomm Long Distance, Inc., 902 S.W.2d at 666 (noting a

well-recognized exception to the no-collateral attack rule when an agency

10 acts beyond the scope of its statutorily conferred powers); Tex. Dep’t of

Transp. v. T. Brown Constructors, Inc., 947 S.W.2d 655, 659 (Tex. App.—

Austin 1997, writ denied) (collateral attack is allowed only when the

judgment was void or involved fundamental error). Absent those excep-

tions, the courts lack jurisdiction to consider a collateral attack on an

administrative order that is final and unappealable as to that party. See City

of Celina v. Dynavest Joint Venture, 253 S.W.3d 399, 403 (Tex. App.—Austin

2008, no pet.), rev’d on other grounds, Rusk State Hosp. v. Black, 392 S.W.3d 88

(Tex. 2012) (“Although courts generally do not have jurisdiction to con-

sider collateral attacks on state agency decisions, a collateral attack upon

an agency order may be maintained successfully if the order is void.”),

citing Chocolate Bayou Water Co. & Sand Supply v. Tex. Natural Res. Conserv.

Comm’n, 124 S.W.3d 844, 853 (Tex. App.—Austin 2003, pet. denied).

11 II.

Issue 2: Baxter received adequate Due Process. (Response to Sections

A. The Order is not misleading, provides adequate information and is not void.

1. The Order provides ample information about the Site and the parties involved.

Baxter suggests that the Order was vague or illogical, but those asser-

tions are not well-founded. For example, Baxter asserts that, “Except for

the fact that Baxter was on the Order’s mailing list, nothing in the TCEQ’s

Order provides any information linking Baxter to the Voda Site.” Appel-

lant’s Br. 22. To the contrary, the Order names Baxter as a “potentially

responsible party,” CR 1598; describes the actions or statuses that led to

that categorization, CR 1612-13; lists and describes the “Chemicals of

Concern” found at the Site, CR 1615, 1668-69; and concludes that the

potentially responsible parties are “responsible parties,” CR 1616. Baxter

already knew, or could readily find out, what materials it had shipped to

12 the Site. See, e.g., CR 1478-1568.

Baxter also asserts that “without any supporting finding of fact or

analysis, all of the potentially responsible parties are suddenly and auto-

matically transformed into ‘responsible parties’ by Conclusion of Law and

Determination III.A on page 25 of the Order. CR 1757.” Appellant’s Br. 23.

This grossly misstates the contents of the Order, which contains 20 pages of

findings of fact, CR 1596-1616, and twelve conclusions of law, CR 1616-17.

Baxter may disagree with the findings and conclusions, but cannot say that

there are none.

Finally, Baxter asserts that the Order “did not provide Baxter sufficient

information of a potential deprivation of its property.” Appellant’s Br. 23.

To the contrary, the Order required Baxter and others to reimbuse the

TCEQ’s costs, CR 1621, perform remedial work, CR 1622, and carry out

other specific and detailed activities, CR 1622-48. The Order certainly

provided notice that the named parties were being asked to pay money

and perform work.

13 2. The TCEQ is not required to include appellate advice in its orders.

Baxter asserts that the Order “did not provide Baxter with notice of the

right to appeal the Order and in fact was misleading on this point ... [and]

did not provide Baxter with any information about the extent of the prop-

erty deprivation.” Appellant’s Br. 15. To the contrary, the Order was not

misleading about Baxter’s right to appeal. Baxter admits: “nothing in the

62–page Order itself even hints that a PRP has any right to be heard in a

challenge to the Order.” Appellant’s Br. 16, citing CR 1733-94. In other

words, the Order was not misleading because the TCEQ provided no

information at all about administrative appeals—nor was it required to.

The Order is a final decision of the TCEQ. It represents the culmination

of a lengthy and complicated investigation and remedy selection process.

The TCEQ is required to embody within the document only what it has

determined and decided.

Baxter’s argument is that the agency should have given information

about whether and how to appeal, and its failure to do so was misleading.

14 Appellant’s Br. 16 (“[T]he Order is misleading in that it creates the impres-

sion that no right to appeal exists.”). Baxter points to language in Sec.

XXXII of the Order, CR 1792, saying “this would have been one logical

place to provide some notice to PRPs of the right to challenge the Order.”

Appellant’s Br. 16-17. However, that argument assumes that the TCEQ had

an obligation to provide advice concerning a party’s right to appeal in the

Order. This argument must fail because the agency has no such obligation.

3. The Order did not mislead expressly or by implica- tion.

Baxter refers to the language of Sec. XXXII as being an “express denial

of any ‘right to seek review’ of the Order.” Appellant’s Br. 17, quoting sec.

XXXII of the Order. However, that section merely says, “The conference

… does not give Agreeing Respondents or … Performing Parties the right

to seek review of this AO.” CR 1792. A fair reading of this section is that

the conference itself does not provide a right of appeal—not that the right

to appeal is nonexistent. In any case, the record does not reflect that Baxter

was misled into requesting a conference, and Baxter does not claim that it

15 was, so the issue is moot.

Similarly, Baxter asserts that Section XXXV misleads by saying,

“nothing in this AO waives the State of Texas’ sovereign immunity relating

to suit, liability, and the payment of damages.” Appellant’s Br. 17, quoting

sec. XXXV, CR 1793. This would not be misleading to a lay person, because

a lay person would not understand that the statutory right to appeal such

administrative order actually constitutes a waiver of the State’s sovereign

immunity. Likewise, this language would not be misleading to an attorney,

because the attorney would know (perhaps after some research) that the

statute contains a specific section providing for appeal of the Order. Tex.

Health & Safety Code § 361.321. This argument by Baxter must fail.

There is no “express denial” of a right to appeal in this Order. Baxter’s

argument that the Order is “affirmatively misleading” about the right to

appeal is spurious.

B. Baxter seeks to expand its rights under the Due Process Clause.

Baxter does not dispute that it was notified of the progress of the

16 Superfund investigation, or that it was served with a copy of the Order

when issued, or that the deadline for appeal has passed. Baxter does not

dispute that, under existing precedents, the Order is final, unappealable

and immune from collateral attack. Instead, Baxter asserts that the Order

was void because it did not contain adequate notice. In making this argu-

ment, Baxter seeks to expand the scope of protection offered by the Due

Process Clause. The crux of that argument is contained in a footnote to

Appellant’s Brief:

Baxter recognizes that some cases have described only two cir- cumstances under which administrative orders are void in a manner that subjects them to collateral attack – when an agency exceeds its authority or when an order is procured by extrinsic fraud. See Chocolate Bayou Water Co. & Sand Supply v. Tex. Natural Res. Conserv. Comm’n, 124 S.W.3d 844, 853 (Tex. App.—Austin 2003, pet. denied); Lesikar v. Rappeport, 33 S.W.3d 282, 613 (Tex. App.—Texarkana 2000, no pet.). Those cases did not involve orders entered without adequate notice and thus the courts had no opportunity to consider the implications of an order entered in violation of due process. Orders that fail to comply with due process are void. See Security State Bank & Trust, 397 S.W.3d at 723; see also N.Y. Life Ins. Co., 84 F.3d at 143; In re Guardianship of B.A.G., 794 S.W.2d at 513. The types of void orders subject to collateral attack should thus include constitutionally infirm orders.

17 Appellant’s Br. 28 n.5. In other words, Baxter cites no authority for the

proposition that this Order, or any order issued and served such as this, is

void for violating Due Process. Instead, Baxter is asking for an expansion

of its Due Process rights to provide special relief in this case.

Baxter describes this new constitutional right as the right to be notified

that an administrative order “could be appealed or the consequences of not

appealing,” Appellant’s Br. 15; or the right to receive “adequate notice of

the right to be heard,” or “adequate notice of the issues or consequences,”

id. at 22, concerning such orders. However, the constitutional precedents

are decidedly against this proposition.

1. The personal service requirement has been met.

In discussing the adequacy of notice, Baxter relies upon Mullane v.

Cent. Hanover Bank & Trust Co., 339 U.S. 306, 318 (1950) (service by publica-

tion regarding settlement of trust funds, held inadequate to give notice to

“known present beneficiaries of known place of residence”). Notice by

publication may be inadequate, and thus violate Due Process, if personal

18 service is readily available. Id. at 318-19.

As noted above, Baxter received personal service. CR 1676-95. While

Mullane speaks generally to the importance of notice and opportunity to be

heard, and may not be strictly applicable here, in any case its requirement

of personal service has been met.

2. The Order meets the three-part balancing test of Mathews v. Eldridge

Baxter’s principal argument is that these rights exist, or should exist,

under the precedent established by Mathews v. Eldridge, 424 U.S. 319 (1976).

See Appellant’s Br. sec. I.D at 24-27. Baxter cites Mathews both for general

principles of Due Process and specifically for the Supreme Court’s balanc-

ing test regarding notice and opportunity to be heard. Appellant’s Br. 14,

24, passim. However, applying the Mathews test to the facts of this case

reveals that Baxter’s Due Process rights were not violated.

Mathews concerned a recipient of Social Security disability benefits

(Eldridge), whose benefits were terminated when the agency determined

that he was no longer disabled. Mathews, 424 U.S. at 324. The Supreme

19 Court characterized the issue as follows: “whether the Due Process Clause

of the Fifth Amendment requires that prior to the termination of Social

Security disability benefit payments the recipient be afforded an opportu-

nity for an evidentiary hearing.” Id. at 323.

The agency’s procedures included the gathering of medical informa-

tion, communication with the disabled worker in writing and orally, and

examination by an independent consulting physician. Id. at 337. The

worker was entitled to respond with additional evidence, id. at 338; to

request reconsideration; and to have a non-adversarial hearing, with

counsel, before an administrative law judge. Id. at 339.

The Court found that, even though the agency’s procedures did not

include the right to an evidentiary hearing prior to termination, they

nevertheless met the requirements of Due Process. Id. at 339-40.

In Mathews the Supreme Court said, “[p]rocedural due process im-

poses constraints on governmental decisions which deprive individuals of

‘liberty’ or ‘property’ interests within the meaning of the Due Process

20 Clause of the Fifth or Fourteenth Amendment.” Id. at 332. “[S]ome form of

hearing is required before an individual is finally deprived of a property

interest.” Id. at 333. However, the actual form of hearing varies from

informal administrative procedures to “a hearing closely approximating a

judicial trial,” id., citing Goldberg v. Kelly, 397 U.S. 254, 266-71 (1970).

Noting that the requirements of Due Process are not fixed, the Court

enunciated a balancing test involving three factors:

[I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the proce- dures used, and the probable value, if any, of additional or substi- tute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Id. at 335. The Court used this balancing test to distinguish Mathews from

Goldberg v. Kelly, which had previously held that a person’s welfare bene-

fits could not be terminated without an evidentiary hearing prior to

termination. See Goldberg, 397 U.S. at 266-71. Baxter asserts that this balanc-

21 ing test, applied to the present case, shows that Baxter’s Due Process rights

were violated. However, an application of that test to the facts of this case

shows the opposite.

a. The first factor—the private interest that will be affected by the official action—weighs heavily against Baxter

The Supreme Court looked, in the two cases, at the deprivation that

could affect individuals if benefits were denied. The Mathews termination

differed from Goldberg v. Kelly in that “[e]ligibility for disability benefits, in

contrast [to welfare benefits], is not based upon financial need.” Mathews,

424 U.S. at 340. Thus, “[t]he potential deprivation here is generally likely to

be less than in Goldberg.” Id. at 341. Although the disabled worker could

suffer an interim loss awaiting a final decision, the worker might have

other sources of income. Id. at 342-43.

In the present case, Baxter will suffer no comparable deprivation from

its failure to timely appeal the Order—indeed, Baxter has not yet suffered

any loss of liberty or property at all. What Baxter has lost is a legal posi-

tion. Essentially, Baxter is now a co-defendant, along with other companies

22 like Shell and Exxon Mobil, in a Superfund cost recovery action. See CR

1924-34. The other companies timely appealed; Baxter did not. The findings

and conclusions in the Order are established as a matter of law as to Baxter,

but not as to the other defendants. Baxter is currently at a disadvantage in

trial preparation or settlement negotiations, but the case is not over. The

finder of fact must still allocate costs among the remaining parties. See Tex.

Health & Safety Code §§ 361.343, .276. Only then can a final money judg-

ment be assessed.

Even if the other parties managed to escape liability altogether, and

Baxter were the “last man standing,” Baxter’s deprivation could not

compare to the loss of welfare benefits in Goldberg, which might have

resulted in actual physical hardship, or in Mathews to the loss of Social

Security benefits to a disabled worker who might (or might not) have other

sources of income.

Baxter has lost a legal position in an ongoing lawsuit, but has not lost a

liberty or property interest. As to the first factor, the Mathews balancing test

23 weighs heavily against Baxter.

b. The second factor—the risk of erroneous deprivation and prob- able value, if any, of additional or substitute safeguards–weighs against Baxter

Secondly, the Supreme Court examined the nature of the inquiry and

the information required in each case. In Mathews, the relevant inquiry

depended on “medically acceptable clinical and laboratory diagnostic

techniques,” Mathews, 424 U.S. at 343, citing 42 U.S.C. § 423(d)(3), whereas

in Goldberg, “written submissions are a wholly unsatisfactory basis for

decision.” Mathews, 424 U.S. at 344, citing Goldberg, 397 U.S. at 269. The

Court concluded that in Mathews, “[t]he potential value of an evidentiary

hearing, or even oral presentation to the decisionmaker, is substantially

less in this context than in Goldberg.” Mathews, 424 U.S. at 344-45.

The current case is much closer to Mathews than to Goldberg. The TCEQ

is required to go through exhaustive procedures to establish the facts in

support of a Superfund order. See Tex. Health & Safety Code §§ 361.181-

.188. (For a description of what the TCEQ actually did to investigate the

24 Site, identify potentially responsible parties, select the remedy and prepare

the Order, see TCEQ’s Motion for Partial Summ. J., sec. III.C at CR 1190-

1233.) These procedures are designed to ensure that persons responsible

for solid waste or hazardous substances at a Superfund site are properly

identified, that they are aware of the procedure and have an opportunity to

be heard, and that they have a right to petition the courts for judicial

review when the order is issued. Nothing about this Order indicates that

the TCEQ failed to follow the proper statutory procedures, or otherwise

deprived anyone of their Due Process rights.

There would be little value, if any, in “additional or substitute proce-

dural safeguards.” Most of the viable parties named in the Order filed

timely appeals. CR 221-35. What Baxter wants is to make the Order once

again appealable so it can argue the merits. The only additional “safe-

guard” at this point would be to re-open the District Court’s jurisdiction

after the statute has extinguished it. While such an action would benefit

Baxter in this one case, it would create uncertainty as to the finality of

25 judgments and be destructive of judicial procedure overall.

Thus, as to the second factor, this case is closer to Mathews than to

Goldberg because it depends on documentary and scientific evidence, and

the procedures allow for input by the parties and the correction of errors.

There would be little value in additional or substitute safeguards, and

positive harm to the judicial process if Baxter were allowed to appeal at

this late date. The second factor weighs against Baxter.

c. The third factor—the public interest—weighs decisively against Baxter

The Supreme Court then said, “In striking the appropriate due process

balance the final factor to be assessed is the public interest.” Mathews, 424

U.S. at 347. “[T]he Government’s interest, and hence that of the public, in

conserving scarce fiscal and administrative resources is a factor that must

be weighed.” Id. at 348. “The essence of due process is the requirement that

‘a person in jeopardy of serious loss (be given) notice of the case against

him and opportunity to meet it.’” Id. at 348-49, quoting Joint Anti-Fascist

Refugee Comm. v. McGrath, 341 U.S. 123, 171-72 (1951). In the circumstances

26 of Mathews, however, the Court said, “[w]e conclude that an evidentiary

hearing is not required prior to the termination of disability benefits and

that the present administrative procedures fully comport with due pro-

cess.” Mathews, 424 U.S. at 349.

Baxter suggests that the TCEQ’s burden of providing additional notice

would be “minuscule.” Appellant’s Br. 26. However, that notice would

actually be a form of legal advice, and it would not be simple in cases such

as this. Ironically, Baxter’s proposed notice (Appellant’s Br. 26) contains a

series of problematic statements and outright errors, as follows:

! “Those costs could exceed $_____”— Problematic, since TCEQ cannot know the final costs at the time of such a Superfund order (when the remedial action has not started), and even a carefully- selected remedial action plan (see, e.g., CR 1659-67) cannot ensure against unexpected contingencies.

! “Pursuant to section 361.321 and/or 361.322 of the Texas Health and Safety Code, you have the right to appeal this Order”— Not sound advice, since the proper section is currently an issue on appeal in this court. See Tex. Comm’n on Envtl. Quality v. Exxon Mobil Corp., No. 03-14-00667-CV (Tex. App.—Austin). (The TCEQ’s position is that this Order was issued under Tex. Health & Safety Code § 361.188 and the appeal can be taken only under id. § 361.321.)

27 ! “Your appeal must be filed with the TCEQ”— Wrong; the petition for review must be filed in the district court of Travis County. Tex. Health & Safety Code § 361.321(a). 2

! “… within 30 days of the date of this Order”— Correct, assuming that the appeal is brought under Section 361.321. 3

! “Failure to file an appeal will adversely affect your right to chal- lenge this Order”— Understated, since the order would actually become final and unappealable.

Thus, the legal advice that Baxter would have the TCEQ give would not be

simple or easy; it would be burdensome to the agency and problematic to

those receiving it, and might create Due Process problems in itself. The

same could be true of practically any legal advice an agency might offer to

a person named in an administrative order.

Finally, it must be noted that a right to be advised of the appealability

of final administrative orders, if it existed at a constitutional level, would

also necessarily apply to court orders and judgments. This would greatly

2 Even if the petition for review is filed pursuant to Section 361.322, it still must be filed in the district court. Tex. Health & Safety Code § 361.322(a), (g)-(h), (i)-(k). 3 However, if the appeal is under Section 361.322, then the petition can be filed “before the 46th day after the date of receipt, hand delivery, or publication service of the order.” Tex. Health & Safety Code § 361.322(a).

28 disturb the public interest in the finality of judgments. See Petro-Chem.

Transp., Inc. v. Carroll, 514 S.W.2d 240, 246 (Tex. 1974) (“[F]inal judgments

should not be disturbed unless there is good reason for doing so.”)

The third factor weighs decisively against Baxter.

3. The Mathews test has not been universally applied

The Mathews test has not been universally applied to all Due Process

challenges. The Supreme Court has abrogated its holding with respect to

state rules of criminal procedure. See Medina v. California, 505 U.S. 437, 443

(1992) (“In our view, the Mathews balancing test does not provide the

appropriate framework for assessing the validity of state procedural rules

which, like the one at bar, are part of the criminal process.”). Courts have

applied other factors concerning right to counsel in parent-child relation-

ship cases. See, e.g., M.E.K. v. R.L.K., 921 So.2d 787, 791 (Fla. Dist. Ct. App.

2006) (“[I]in the context of determining whether a right to appointed

counsel exists in a case involving the parent-child relationship, Florida

courts must weigh the factors enunciated in [Potvin v. Keller], not

29 Mathews.”), citing Potvin v. Keller, 313 So.2d 703 (Fla. 1975).

4. The Gonzalez line of cases is distinguishable.

a. Gonzalez involved incorrect notice rather than a lack of notice.

None of Baxter’s cited cases supports the proposition that Due Process

requires an agency to advise a party that a final administrative order may

be appealed. The case that comes closest to being on point, but is distin-

guishable, is Gonzalez v. Sullivan, 914 F.2d 1197 (9th Cir. 1990). Gonzalez

filed for Social Security disability benefits. Id. at 1200. The Secretary of the

Department of Health and Human Services denied the application, and

Gonzalez reapplied. Id. An administrative law judge conducted a hearing

and denied the application. Id. Gonzalez appealed to the district court and

then to the U.S. Court of Appeals for the Ninth Circuit. Id. As part of the

appeal, the Court examined whether the notice of adverse decision met the

requirements of Due Process.

The notice contained the following language: “If you do not request

reconsideration of your case within the prescribed time period, you still

30 have the right to file another application at any time.” Id. at 1203. The

Court concluded that, “The notice given in this case does not clearly

indicate that if no request for reconsideration is made, the determination is

final. We conclude that the notice violates appellant’s fifth amendment

right to due process.” Id.

In Gonzalez, the agency was required by statute to give notice concern-

ing the right to reapply or appeal. The Social Security Act says:

In any notice of an adverse determination with respect to which a review may be requested … , the Commissioner of Social Security shall describe in clear and specific language the effect on possible entitlement to benefits under this subchapter of choosing to reap- ply in lieu of requesting review of the determination.

42 U.S.C. § 405(b)(3)(B) (citation omitted). 4

The federal circuit courts are unanimous in finding that this notice in

the Social Security form letter is defective and gives rise to Due Process

issues. Most circuits, however, find that there is a second part to the

4 Some Texas statutes also require notice of the right to appeal specific administra- tive orders. For example, notice of certain orders of the Texas Real Estate Commission must include notice of “the person’s right to judicial review of the order.” Tex. Occ. Code §§ 1101.705(e), 1101.706(3). There is no such requirement in the present case.

31 analysis: “whether the defective notice violates the claimant’s procedural

due process rights.” Loudermilk v. Barnhart, 290 F.3d 1265, 1269 (11th Cir.

2002). That issue involves the question of detrimental reliance. In review-

ing Gonzalez, the Loudermilk court explained:

In Lujan v. Defenders of Wildlife, the Supreme Court held there must be a causal connection between the injury and the complained of conduct.… All the circuit courts considering the Social Security determination notice issue, with the exception of the Ninth Cir- cuit, require a causal connection, following the Supreme Court’s dictate in Lujan. In implementing this requirement, the courts hold the claimant must have detrimentally relied upon the notice.… We find the reasoning and, therefore, the test employed by the major- ity of the circuits more persuasive in light of the teachings of Lujan.

Loudermilk, 290 F.3d at 1269, citing Lujan v. Defenders of Wildlife, 504 U.S.

555 (1992) (other citations omitted). Thus, the federal circuit courts all agree

that the notice was defective; the Ninth Circuit is in the minority in not

requiring detrimental reliance.

A claimant may negate detrimental reliance by abandoning the claim.

See, e.g., Brooks v. Apfel, 71 F. Supp. 2d 858, 862 (N.D. Ill. 1999), citing

Gonzalez, 914 F.2d at 1203 (holding that a similar applicant had abandoned

32 his claim after five years). “It is reasonable to conclude that such a gap

between filings suggests abandonment, not confusion.” Brooks, 71 F. Supp.

2d at 863.

b. The Gonzalez precedents are not binding but are “congruent” with Texas law.

The specific rulings of the federal courts in the Gonzalez/Loudermilk line

of cases, analyzing the specific language of a Social Security form letter, are

not binding on Texas courts. “Decisions of the federal courts of appeals, of

course, do not bind Texas courts although they are received with respectful

consideration.” Hayes v. Pin Oak Petroleum, Inc., 798 S.W.2d 668, 672 n.5

(Tex. App.—Austin 1990, writ denied) (per curiam) (citations omitted).

However, the Texas Supreme Court has referred to federal and state

constitutional provisions as “congruent.” City of Dallas v. VSC, LLC, 347

S.W.3d 231, 234 n.3 (Tex. 2011) (citation omitted) (“Where the parties have

not argued that there are any material differences between the state and

federal versions of a constitutional provision, we typically treat the two

clauses as congruent.”)

33 c. In any event, the present case does not fall under the Gonza- lez/Loudermilk precedent.

The Gonzalez/Loudermilk line of cases are tangential to the present case:

they hold that, if an agency gives advice concerning the right to appeal an

administrative decision, that advice must be correct. If an affected party

relies upon that advice to the party’s detriment, and a significant property

right is affected, procedural Due Process may have been denied. However,

while Gonzalez and Loudermilk are tangentially relevant, the present case

does not actually meet either prong of their Due Process analysis—neither

incorrect advice nor detrimental reliance. The TCEQ did not offer any

advice concerning a party’s right to appeal the Order, so Baxter could not

have relied upon such advice.

C. Any Due Process notice violation has been cured by subse- quent correct notices.

An agency may correct an incorrect notice and avoid a potential Due

Process issue. See, e.g., Torres v. Shalala, 48 F.3d 887 (5th Cir. 1995) (appli-

cant received the same incorrect notice twice, but then continued reapply-

34 ing and subsequently received a correct notice). In Torres, the Fifth Circuit

said, “Appellant has not shown any causal connection between the alleg-

edly misleading language in the first two notices and his subsequent

failure to seek judicial review. Appellant continued to appeal his denial of

benefits, and did not stop until he reached the end of the administrative

process.” Id. at 893.

A party who was unaware of an administrative proceeding may still

face a deadline for timely judicial review when later notified of the admin-

istrative order. See, e.g., Bedell v. State, No. 03-11-00502-CV, 2013 WL

2631738 (Tex. App.—Austin, June 5, 2013), review denied (Sept. 27, 2013)

(mem. op.). The Texas Railroad Commission issued an order requiring

Bedell to plug certain oil and gas wells and pay a penalty. Id. at *1. Bedell

failed to comply; the agency brought suit in district court. Id. Bedell filed

defensive pleadings and a counterclaim; the state filed a motion for sum-

mary judgment and a plea to the jurisdiction “urging that the trial court

lacked jurisdiction over the counterclaim because Bedell had not demon-

35 strated that the State had waived sovereign immunity … .” Id. On appeal,

the state contended that, even if Bedell had no contemporaneous notice of

the administrative proceeding and order, “he failed to avail himself of the

judicial review process once he learned of the order [during the lawsuit] in

2011.” Id. at *3. The Court of Appeals noted that: “A notice problem only

creates a different starting date for the time to seek judicial review; it does

not eliminate the requirement.” Id. at *4 (citations omitted). The Bedell

situation was remarkably similar to the present case:

[A]ny notice problem here was resolved arguably no later than when Bedell learned of the existence of the administrative order by receiving service of the petition [in 2010], and certainly no later than when he received a copy of the administrative order as an exhibit in the appendix of the State’s Motion for Partial Summary Judgment [in 2011]. … The undisputed record shows that Bedell did not file the counterclaim or any petition for judicial review within the thirty days of receiving a copy of the administrative order. Bedell has not shown sufficient good cause for failing to exhaust his judicial-review remedy after receiving notice of the order.

Id. at *4 (footnotes and citations omitted). Accordingly, the state’s plea to

the jurisdiction was affirmed. Id. at *5.

36 In the present case, the TCEQ has actually given Baxter notice of the

Order three times: first, when the Order was initially issued, CR 1676-94,

1679, 1695; second, when the TCEQ filed its counterclaim and third-party

petition, CR 283-424; and third, when the TCEQ filed its Plea to the Juris-

diction, CR 1582-1703. Even if the first and second notices were defective,

the TCEQ’s Plea to the Jurisdiction, with the Order attached, gave Baxter

complete notice regarding how to appeal, including the applicable section

of the statute. See CR 1587, citing Tex. Health & Safety Code § 361.321(c).

Any Due Process violation has been cured.

D. The cases that Baxter cites are inapposite.

Baxter cites various cases concerning the importance of notice to Due

Process. However, as Baxter readily admits, the “notice required will vary

with circumstances and conditions.” Appellant’s Br. 22, quoting City of

Dallas v. VSC, LLC, 347 S.W.3d at 238 (other citations omitted). Notice is

required at several steps in an administrative or legal process. Due Process

does not require an administrative agency to advise a party concerning its

37 right to appeal a final administrative order.

1. Cases involving the absence of notice, rather than the adequacy of notice, are inapposite.

Some of Baxter’s cited cases involve the absence of notice, not the

adequacy of notice. See, e.g., Peralta v. Heights Med. Ctr. Inc., 485 U.S. 80, 86

(1988) (no proper service of process); Barrera-Montenegro v. United States, 74

F.3d 657, 660 (5th Cir. 1996) (notice of forfeiture procedure and seizure sent

to wrong address). These cases are not precedential here because in the

present case the notice was sent and received at the correct address.

2. Cases involving service at the commencement of an action are inapposite.

Due Process requires that a person be notified of the commencement

of a legal or administrative proceeding that might affect the person’s

substantive property rights. Baxter cites several such cases: see, e.g., Walker

v. City of Hutchinson, Kan., 352 U.S. 112 (1956) (notice of condemnation

proceedings against property, where landowner’s name was known and

was on official records); Houston v. Fore, 412 S.W.2d 35, 39 (Tex. 1967)

38 (constructive notice of administrative hearing on street paving improve-

ments); Boddie v. Connecticut, 401 U.S. 371, 378 (1971) (denial of indigent’s

access to courts due to inability to pay); In re Ruffalo, 390 U.S. 544, 550

(1968) (notice of charge in attorney disbarment proceedings).

None of these cases provides a precedent for the present case, since

this case involves a final order, not the commencement of proceedings, and

Baxter received actual and legal notice of the Order when it was issued. In

addition, Baxter had had notice at several stages of the administrative

Superfund proceeding. AR 30601-05, 17912-18, 17945-54, 33053-64.

3. Cases involving significant events during a pro- ceeding are inapposite.

Due Process requires notice of certain significant events during the

pendency of an action. Baxter cites many cases: see, e.g., Mosser v. Plano

Three Venture, 893 S.W.2d 8, 12–13 (Tex. App.—Dallas 1994, no writ)

(“notice” of summary judgment hearing that did not include date and time

of hearing); Fuentes v. Shevin, 407 U.S. 67 (1972) (prejudgment replevin

action taking chattels without opportunity to be heard); Williams v. Holley,

39 653 S.W.2d 639, 640 (Tex. App.—Waco 1983, writ ref’d n.r.e.) (inadequate

notice of pleadings and trial setting); Langdale v. Villamil, 813 S.W.2d 187

(Tex. App.—Houston [14th Dist.] 1991, no writ) (notice to attorney after

termination of attorney-client relationship, not imputed to former client);

L.B.L. Oil Co. v. Int’l Powers Servs., Inc., 777 S.W.2d 390, 391 (Tex. 1989) (per

curiam) (failure to give notice of hearing on motion for default judgment);

Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex. 1988) (per curiam) (lack of notice

of trial setting); Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986) (lack of

notice to client where attorney withdrew two days before trial and did not

turn over file to substituted attorney); Misium v. Misium, 902 S.W.2d 195

(Tex. App.—Eastland 1995, writ denied) (failure of counsel to inform client

of upcoming trial during counsel’s motion to withdraw); Moss v. Malone,

880 S.W.2d 45, 51 (Tex. App.—Tyler 1994, writ denied) (lawyer’s with-

drawal without taking steps to protect party’s rights); Tramco Enters., Inc. v.

Indep. Am. Sav. Ass’n, 739 S.W.2d 944, 948 (Tex. App.—Fort Worth 1987, no

writ) (inadequate notice of trial setting); Chow v. Dole, 677 S.W.2d 220 (Tex.

40 App.—Houston [1st Dist.] 1984, no writ) (notice of trial setting); Rotello v.

State, 492 S.W.2d 347, 349 (Tex. Civ. App.—Houston [1st Dist.] 1973, writ

ref’d n.r.e.) (no proper notice and hearing prior to dismissal); N.Y. Life Ins.

Co. v. Brown, 84 F.3d 137, 143 (5th Cir. 1996) (inadequate service of sum-

mary judgment motion).

None of these cases holds that advice concerning a right to appeal

must be given as part of notice of a final administrative or legal order. They

are not precedential as regards the present case.

4. Cases involving administrative decisions without an appealable final order are irrelevant.

Notice of certain administrative actions must be given in time for

affected parties to protest or respond. Baxter produces a plethora of prece-

dents: see, e.g., City of Waco v. Roddey, 613 S.W.2d 360, 365 (Tex. App.—

Waco 1981, no writ) (notice before a city orders demolition of buildings);

Memphis Light, Gas, & Water Div. v. Craft, 436 U.S. 1, 45 (1978) (notice in

municipal utility bills that payment was overdue and service would be

discontinued); Bradford v. Edelstein, 467 F. Supp. 1361, 1373 (S.D. Tex. 1979)

41 (notice and opportunity to be heard before termination of public utilities);

Hess & Clark, Div. of Rhodia, Inc. v. Food & Drug Admin., 495 F.2d 975, 983

(D.C. Cir. 1974) (notice before agency withdraws approval of drug applica-

tions and related regulations); Wolff v. McDonnell, 418 U.S. 539, 564 (1974)

(written notice to prisoners and opportunity to be heard before loss of

good-time or imposition of solitary confinement); Navato v. Sletten, 560 F.2d

340 (8th Cir. 1977) (notice and opportunity to respond to allegations before

a medical residency training committee); N. Alabama Exp., Inc. v. United

States, 585 F.2d 783 (5th Cir. 1978) (notice in Federal Register of the true

nature of a common carrier application); Fed. Commc’ns Comm’n v. Pottsville

Broad. Co., 309 U.S. 134, 143 (1940) (denial of application for a radio station:

“To be sure, the laws under which these agencies operate prescribe the

fundamentals of fair play.”); City of W. Covina v. Perkins, 525 U.S. 234 (1999)

(notice of state law remedies when police seize property for a criminal

investigation); Dusenbery v. United States, 534 U.S. 161 (2002) (notice of

forfeiture by FBI, including notice by certified mail to federal prison where

42 claimant was incarcerated, satisfied due process); Jones v. Flowers, 547 U.S.

220 (2006) (notice and opportunity for hearing, as appropriate, before

taking of property for unpaid taxes); City of Dallas, 347 S.W.3d at 231 (in a

property seizure from a storage facility, actual notice was sufficient to

impose on facility operator the duty to pursue statutory remedy.)

Such cases speak to Due Process generally, but do not address the

notice that must be given in a final order. More importantly, none say that

an agency must give advice concerning a party’s right to appeal a final

order.

5. Due Process may enhance statutory notice require- ments, but the cited cases are inapposite.

In cases where a statute or regulation specifies an administrative

process, Due Process may guarantee additional protection. Baxter cites

many cases: see, e.g., Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982)

(right to have adjudication of the merits of unlawful termination, as

provided under the Illinois Fair Employment Practices Act); Cleveland Bd. of

Educ. v. Donnelly, 470 U.S. 532, 542 (1985) (terminated employees entitled to

43 post-termination administrative procedures, as provided by Ohio statute);

Valero S. Tex. Processing Co. v. Starr Cnty. Appraisal Dist., 954 S.W.2d 863,

865 (Tex. App.—San Antonio 1997, pet. denied) (notice required under

article 41.47(d) of the Texas Tax Code: “The orders did not reference the

property in question by legal description or a taxpayer account number but

by docket number which was evidently assigned by the appraisal district

for internal administrative purposes.”).

These cases are not precedential because Baxter received the notice

prescribed under Texas law, and the law requires no other notice or advice

concerning this appeal.

44 III.

Issue 3: Even if the Order had been issued in violation of Due Process

it is not void but merely voidable—and it still must be timely appealed for

the courts to have jurisdiction. (Response to both sections of Appellant’s

A. Even if the Order was misleading and had been issued in violation of Due Process, it was not void; it still had to be timely appealed.

A flawed administrative order, which may be reversible on appeal,

nevertheless must be timely appealed. The courts lack jurisdiction other-

wise. It follows that administrative orders issued in violation of Due

Process still must be timely appealed. Such orders are not void, but merely

voidable on appeal.

1. The courts cannot acquire jurisdiction by mistake or accident.

A failure to timely appeal an administrative order can be fatal to the

appeal, even if the failure is an excusable mistake. See, e.g., Tex. Alcoholic

Beverage Comm’n v. Sfair, 786 S.W.2d 26, 27 (Tex. App.—San Antonio 1990,

45 writ denied) (untimely appeal of decision of Texas Alcoholic Beverage

Commission after overruling of motion for rehearing). The Court of

Appeals noted: “The Sfairs’ tardiness was undoubtedly brought on by the

actions taken by the Commission in sua sponte granting the rehearing and

setting a new hearing date.” Id. Nevertheless, despite this justifiable

excuse, the appeal was dismissed. Id. at 28. The court explained:

An appeal from an administrative agency is not a matter of right, it is set out by statute and must be strictly complied with in order to vest the district court with jurisdiction. … The procedure to be followed is mandatory and jurisdictional. … The fact that the agency may have erred in sua sponte granting the motion for rehearing and engaging in subsequent proceedings does not excuse the Sfairs’ late filing of their petition in the district court.

Id. at 27-28 (citations omitted). Thus, even if the agency may have confused

the situation by its procedures, the courts still lack jurisdiction to review an

administrative order except within the statutory waiver of sovereign

immunity.

46 2. The courts cannot acquire jurisdiction because a party did not understand the law.

In the absence of a specific statutory requirement, an agency is not

required to advise applicants when a motion for rehearing is overruled by

operation of law. See Hernandez v. Tex. Dep’t of Ins., 923 S.W.2d 192 (Tex.

App.—Austin 1996, no writ) (hearing on insurance agent’s license: “From

the plain language of [the Administrative Procedure Act] Hernandez knew

or was charged with knowledge that if the agency did not act on her motion by

January 16, 1995, forty-five days after the notice of November 30, it would

be overruled by operation of law.”). Id. at 195 (emphasis added, footnote

omitted). Hernandez failed to file a timely appeal after her motion for

rehearing was overruled by operation of law, and her appeal was dis-

missed. Id. at 196.

3. The courts cannot gain jurisdiction by consent or through estoppel.

Even in cases where an agency may have mislead a party concerning

the right to appeal, the courts do not acquire jurisdiction unless the party

47 has exhausted administrative remedies. See, e.g., Daniel v. Dallas Indep. Sch.

Dist., 351 S.W.2d 356 (Tex. Civ. App.—El Paso 1961, writ ref’d n.r.e.)

(alleged wrongful termination of school custodian). The appellant custo-

dian asserted that the superintendent and the school board had told him

there was “nothing more for him to do, and that as far as they were con-

cerned the matter was concluded.” Id. at 358. The appellant failed to file a

timely petition for review, and the courts had no jurisdiction. Id. The court

of appeals said:

[W]e must say that jurisdiction of a court is so important and essential that it has long been held that it cannot be conferred by estoppel. It is a statutory creation or enactment, and cannot be waived or conferred by consent or estoppel, and a court without jurisdiction cannot render a valid judgment.

Id. at 359. See also, Wilmer-Hutchins Indep. Sch. Dist. v. Sullivan, 51 S.W.3d

293 (Tex. 2001) (wrongful termination case in which employee claims that

school district’s attorney misled her). The court said, “Even if the District

misled Sullivan as she claims, her failure to exhaust her administrative

remedies is fatal to her action.” Id. at 295.

48 4. The Texas rule concerning misleading notice is not universally followed.

Some jurisdictions hold that notice and advice concerning the right to

appeal, if any is given, must be correct. See, e.g., Baxter v. Colvin, 14-CV-

01306-WHO, 2014 WL 6985149, at *4 (N.D. Cal. Dec. 10, 2014) (notice of

decision that was “inherently ambiguous” because it “did not clearly

inform plaintiff how and whether she could pursue her right to an oral

hearing … while also objecting to [the] decision on its merits”).

The federal courts have found Due Process violations where there has

been misleading notice and detrimental reliance. See the Gonzalez line of

cases, supra sec. II.B.4, et seq. See also, Butland v. Bowen, 673 F. Supp. 638, 640

(D. Mass. 1987) (notice of denial of Social Security benefits was misleading

and violated Due Process: “Although the notice assured plaintiff that she

had ‘the right to file another application at any time,’ further applications

for disability benefits were in fact barred, unbeknownst to her, after four

years.”).

Thus, precedents in other states and the federal system have held that

49 notice concerning the right to appeal, if given, must be correct. However,

Due Process does not require that such notice be given in the first place.

TCEQ’s failure to give it in the present case simply does not rise to the level

of a Due Process violation.

B. Baxter’s cited cases do not support the proposition that the Order is void

Baxter argues that “the Order should have contained at least a range of

possible expense and some kind of notice of a potentially responsible

party’s appellate remedies” and, because it did not, it was void. Appel-

lant’s Br. 27. For this proposition, Baxter cites three cases: Sec. State Bank &

Trust v. Bexar Cnty., 397 S.W.3d 715 (Tex. App.—San Antonio 2012, pet.

denied); New York Life Ins. Co. v. Brown, 84 F.3d 137 (5th Cir. 1996); and In re

Guardianship of B.A.G., 794 S.W.2d 510 (Tex. App.—Corpus Christi 1990, no

writ). However, each of these cases involves a failure of service at the

commencement of a legal action, not a failure to provide notice of the

potential costs of a final order or the right to appeal.

50 1. Security State Bank and Trust involved a complete lack of notice rather than incomplete notice.

The Security State Bank & Trust case involved a tax sale of real property

against which a bank held a lien. Sec. State Bank & Trust, 397 S.W.3d at 717.

“The Bank asserts that, as a record lienholder, it was entitled to notice and

joinder in the delinquent tax suit and to notice of the subsequent tax sale,

and the lack of notice violates due process and renders the tax sale void as

to the Bank. We agree.” Id. Accordingly, the Court of Appeals vacated and

set aside the tax sale as to the bank’s lien interest. Id. The lienholder bank

had a Due Process right to receive notice: “Because a tax sale significantly

affects a lienholder’s property interest, due process requires that the

lienholder receive notice of the pending tax sale.” Id. at 721, citing Menno-

nite Bd. of Missions v. Adams, 462 U.S. 791, 798 (1983).

The second issue in Sec. State Bank & Trust was the remedy. “A judg-

ment entered without notice or service to an interested party is ‘constitu-

tionally infirm’ in that the failure to provide notice violates ‘the most

rudimentary demands of due process of law.’” Id. at 723, quoting Peralta v.

51 Heights Med. Ctr., Inc., 485 U.S. at 84. “As opposed to a mere defect in

service, a complete failure or lack of service on a party with a property

interest adversely affected by the judgment constitutes a due process

violation that warrants setting the judgment aside.” Sec. State Bank & Trust,

397 S.W.3d at 723. (In this case, of course, Baxter received service.)

The Court of Appeals said, “A collateral attack may be used to set

aside a judgment based on a complete lack of notice to an interested party

in violation of their due process rights.” Id. at 723 (citations omitted). “A

judgment is ‘void,’ and thus subject to collateral attack, if there was a

complete lack of service in violation of due process.” Id., citing PNS Stores,

Inc. v. Rivera, 379 S.W.3d 267, 275 (Tex. 2012). PNS Stores had held, “When

a defective citation is served, but the citation puts the defendant on notice

of asserted claims in a pending suit, and the technical defects are not of the

sort that deprive a litigant of the opportunity to be heard, we reject them as

grounds sufficient to support a collateral attack.” PNS Stores, 379 S.W.3d at

275.

52 Thus, following the precedent of Security State Bank & Trust and PNS

Stores, the service of the Order upon Baxter by certified mail was not

defective and the Order cannot be collaterally attacked.

2. New York Life Insurance involved service at the wrong address.

In New York Life Ins. Co. v. Brown, 84 F.3d at 137, a stakeholder-insurer

filed an interpleader action against two claimants seeking to establish the

ownership of life insurance policy. Summary judgment was entered

against a claimant by default. The Court of Appeals held that, although the

defaulted claimant had appeared by participating in a telephone confer-

ence before a magistrate judge and making a telephone call to plaintiff’s

counsel, the attempt to serve the claimant with a copy of the summary

judgment motion at an address that was not his last-known address did

not provide proper notice. The absence of notice was a denial of Due

Process, rendering the judgment void. New York Life, 84 F.3d at 139. Apply-

ing this precedent to the present case, the actual notice given to Baxter by

providing a copy of the Order conformed with Due Process.

53 3. In re Guardianship of B.A.G. involved a court’s lack of personal jurisdiction rather than notice of a right to appeal.

The third case is In re Guardianship of B.A.G., 794 S.W.2d at 510, an

action for appointment of a temporary guardian for B.A.G., an allegedly

incapacitated adult. B.A.G. did not receive personal service and did not

appear at any of the hearings. Id. at 513. She did not consult counsel before

the hearings and could not have made a knowing and voluntary waiver of

her rights. Id. The trial court did not make a determination that her appear-

ance should be waived, as required by the Probate Code, and her relatives

were not properly notified as required by statute. Id. The Corpus Christi

Court of Appeals said:

A judgment is void only when it is apparent that the court render- ing the judgment had no jurisdiction of the parties, no jurisdiction of the subject matter, no jurisdiction to enter the judgment, or no capacity to act as a court. … A void judgment is one entirely null within itself, and which is not susceptible of ratification or confir- mation, and its nullity cannot be waived. … Furthermore, if a court has not acquired jurisdiction of both the parties and the subject matter of the litigation, the judgment is void and is subject to both direct and collateral attack. Therefore, appellants may collaterally attack the trial court’s judgment if the trial court

54 lacked complete jurisdiction over the parties.

Id. at 511-12 (citations omitted). Accordingly, the Court held, “the [trial]

court lacked personal jurisdiction over B.A.G. and all of its actions regard-

ing her guardianship are void.” Id. at 513.

Thus, Security State Bank & Trust, New York Life, and Guardianship of

B.A.G. all hold that a party to a legal action must be properly served at the

commencement of the action; otherwise, the court lacks personal jurisdic-

tion and any resulting judgment is void. In the present case Baxter was

properly served with a copy of the Order; thus Due Process was satisfied.

PRAYER

For the reasons stated above, Appellee the Texas Commission on

Environmental Quality asks the Court to overrule Appellant’s issues and

affirm the order of the District Court.

Respectfully submitted this 13th day of November 2015.

KEN PAXTON Attorney General of Texas

55 CHARLES E. ROY First Assistant Attorney General

PRISCILLA M. HUBENAK Chief, Environmental Protection Division

/s/ Thomas H. Edwards THOMAS H. EDWARDS Assistant Attorney General Tex. Bar No. 06461800 Thomas.Edwards@ TexasAttorneyGeneral.gov

CRAIG J. PRITZLAFF Assistant Attorney General Tex. Bar No. 24046658 Craig.Pritzlaff@ TexasAttorneyGeneral.gov

Office of the Attorney General Environmental Protection Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 Tel: (512) 463-2012 Fax: (512) 320-0911

56 ATTORNEYS FOR THE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

CERTIFICATE OF COMPLIANCE

I certify that this document was produced on a computer using Word Perfect 13.0 and contains 9,979 words, as determined by the computer software’s word-count function, excluding the sections of the document listed in Texas Rule of Appellate Procedure 9.4(i)(1).

/s/ Thomas H. Edwards THOMAS H. EDWARDS

57 CERTIFICATE OF SERVICE

I, Thomas H. Edwards, do hereby certify that a true and correct copy of the foregoing document, with appendix, was served by electronic service on the following parties or attorneys of record on the 13th day of November 2015.

Attorneys Parties

Elliott S. Cappuccio Baxter Oil Service, Ltd. ecappuccio@pulmanlaw.com Leslie Sara Hyman lhyman@pulmanlaw.com Etan Z. Tepperman etepperman@pulmanlaw.com

PULMAN, CAPPUCCIO, PULLEN, BENSON & JONES, LLP 2161 NW Military Hwy., Ste. 400 San Antonio, Texas 78213 (210) 222-9494 (Telephone) (210) 892-1610 (Facsimile)

58 APPENDIX

59 APPENDIX MOTION FOR REHEARING

TO Chairman Bryan Shaw DATE March 15,2010 Commissioner Buddy Garcia Commissioner Carlos Rubinstein Les Trobman General Counsel 2 copies

FROM LaDonna Castariuela Chief Clerk

Applicant Permittee Voda Petroleum Inc

Permit Type SPF Permit No N A Docket No 2009 1706 SPF

Note If any dates fall on a weekend or a holiday the next working date becomes the due date

Commission action 2 10 2010

MFR Filed By John Riley

MFR Filed For Luminant

Order Mailed Date 2 19 2010

Date MFR Filed OCC date stamp 312 2010

Date MFR Due 3 15 2010 23 days after date order was mailed

Date Replies to MFR Due 3 24 2010 33 days from order mailed date

MFR Overrules by Operation of Law 4 8 2010 Possible agenda dates SOS Notice Deadli e 48 days from order mailed date 3 30 2010 3 22 201 0

If extended action due by 5 24 2010 Possible agenda dates SOS Notice Deadline 93 days from order mailed date 414 2010 4 6 2010 4 28 2010 4 20 2010 519 2010 5 11 2010

Attachments 0 Motion

Permit Order cover letter 0 Attached 0 Previously Submitted

Was an RTC prepared 0 Yes attached 0 No 0 Previously Submitted

cc Tracking Sheet Only Office of Public Interest Counsel Environmental Law Division John Racanelli Financial Administration

Program Staff OCCFinal Docs Team Leader Laurie Eaves OCE

VODA_AR_00000010 Buddy Garcia Chairman

Larry R Soward Commissioner Bryan W Shaw Ph D Commissioner

Mark R Vickery P G Executive Director

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Protecting Texas by Reducing and Preventing Pollution

September 12 2008

CERTIFIED MAIL 91 7108 2133 3934 5604 8317

BAXTER OIL SERVICE LTD MR SAM BAXTER PRESIDENT 4828 N SHEPPARD HOUSTON TX 77018 2216

Re Proposed Remedial Action for the Voda Petroleum Inc Proposed State Superfund Site

Clarksville City Gregg County Texas

Dear Sir or Madam

Pursuant to the Texas Solid Waste Disposal Act Tex Health Safety Code Ch 361 the Texas Commission on Environmental Quality TCEQ is required to publish notice of a public meeting to

discuss the proposed remedial action for the Voda Petroleum Inc Proposed State Superfund Site

The TCEQ shall publish notice of the meeting in the Texas Register and in a newspaper circulating in

the county in which the facility is located at least 30 days before the date of the public meeting The TCEQ is also required to mail the same information to each potentia lly responsible party PRP by

certified mail return receipt requested at least 30 days before the public meeting This letter is to

notify you that the TCEQ will publish a notice of the public meeting to discuss the proposed remedial

action for the Voda Petroleum Inc Proposed State Superfund Site The notice is scheduled to be published in the Texas Register and the Longview News Journal on September 19 2008 The notice will provide information regarding the proposed remedial action and the date time and place of the meeting which is also included in this Jetter

The public meeting for the Voda Petroleum Inc Proposed State Superfund Site is scheduled for

Thursday October 23 2008 in the Broadway Elementary School Cafeteria 200 East Broadway Gladewater Texas beginning at 7 00p m The public comment period begins September 23 2008 and ends October 23 2008 at the close of the public meeting The public meeting is legislative in

nature and not a contested case hearing under the Texas Government Code Chapter 2001 The meeting shall be held to discuss the proposed remedial action receive comments from the public on the proposed remedial action obtain additional information regarding the facility and identify any additional potentially responsible parties

According to Section 361.187 of the Solid Waste Disposal Act PRPs have sixty 60 days following the public meeting on the proposed remedial action to respond in writing to the TCEQ with a Good Faith Offer to fuJJy fund or conduct the proposed remedial action at the Site A Good Faith Offer is

defined at Section 335.342 5 of 30 Texas Administrative Code A Good Faith Offer may be made by submitting correspondence to the TCEQ Project Manager which states the PRP's intent to enter

into an Agreed Administrative Order with the TCEQ to fully fund or conduct a remedial action In

accordance with the sixty 60 day statutory time frame the Good Faith Offer must be received by the TCEQ Project Manager no later than 5 00 pm on December 22 2008 If after the public

meeting on the proposed remedial action the TCEQ determines that comments received at the public meeting will not significantly change the proposed remedial action tben tbe TCEQ will again mail

P O Box 13087 • Austin Texas 78711 3087 • 512 239 1000 • Internet address www tceq state tx us printed on recycled paper

VODA_AR_00017912 BAXTER OIL SERVICE LTD Page 2

notice to all identified PRPs to confirm that December 22 2008 is the date by which the Good Faith Offer to fully fund or perform the proposed remedial action must be received by the TCEQ If a

Good Faith Offer is made by all or some of the PRPs within this period those parties have an additional 60 days to negotiate an Agreed Administrative Order from the TCEQ which shall include

a scope of work The TCEQ may not require an admission of liability in the Agreed Administrative Order If a Good Faith Offer is not received within the specified time period the TCEQ will proceed with an Administrative Order and may complete the remedial action utilizing state funds pursuant to the Solid Waste Disposal Act In such case the TCEQ will seek to recover all of its costs including oversight costs as set out in Section 361.197 ofthe Solid Waste Disposal Act

Enclosed is the Proposed Remedial Action Document which includes the proposed remedial action

alternatives Based on consideration of the requirements of the Solid Waste Disposal Act and 30 Texas Administrative Code Chapter 335 Subchapters K and S the TCEQ is proposing excavation

with off site disposal for the on site surface and subsurface soil containing contaminants above the

applicable cleanup levels and the installation of reactive biobarrier wells with collection and analysis of groundwater samples to confirm that the reactive biobarrier system is reducing the concentrations of contaminants in the shallow groundwater at the Site The reactive biobarrier system would remain in place until it is demonstrated that the concentrations of contaminants in the groundwater no longer exceed their applicable cleanup standards An institutional control would be placed on each property which overlies groundwater contaminated above the cleanup levels and would describe the specific area ofthe contaminated groundwater plume on the affected property The institutional controls are

to be secured and implemented in accordance with the Texas Risk Reduction Program Rules and would remain in place until it is demonstrated that concentrations of contaminants in groundwater no longer exceed the applicable cleanup levels These recommended alternatives are the most cost effective reasonable and appropriate remedy to address the Site

Correspondence should be sent to my attention using mail code MC 136 at the address listed below and must include the following assigned reference number specified in this letter SUP0670016 If you

have any questions please contact me at 512 239 2501 or email at cboucher tceq state tx us

Sincerely

4L Carol Boucher PG Project Manager State Lead Section

Remediation Division Texas Commission on Environmental Quality

CBsr

Enclosures

VODA_AR_00017913 Buddy Garcia Chairman

Mark R Vickery PG Executive Director

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Protecting Texas by Reducing and Preventing Pollution

BAXTER OIL SERVICE LTD MR SAM BAXTER PRESIDENT 4828 N SHEPPARD HOUSTON TX 77018 2216

Re Proposed Remedial Action for the Voda Petroleum Inc Proposed State Superfund Site

Pursuant to the Texas Solid Waste Disposal Act Tex Health Safety Code Ch 361 the Texas Commission on Environmental Quality TCEQ is required to publish notice of a public meeting to discuss the proposed remedial action for the Voda Petroleum Inc Proposed State Superfund Site

The TCEQ shall publish notice of the meeting in the Texa Register and in a newspaper circulating in

the county in which the facility is located at least 30 days before the date of the public meeting The TCEQ is also required to mail the same information to each potentially responsible party PRP by certified mail return receipt requested at least 30 days before the public meeting This letter is to

notify you that the TCEQ will publish a notice of the public meeting to discuss the proposed remedial

action for the Voda Petroleum Inc Proposed State Superfund Site The notice is scheduled to be

published in the Texas Register and the Longview News Journal on September 19 2008 The notice

will provide information regarding the proposed remedial action and the date time and place of the

meeting which is also included in this letter

The public meeting for the Voda Petroleum Inc Proposed State Superfund Site is scheduled for

Thursday October 23 2008 in the Broadway Elementary School Cafeteria 200 East Broadway Gladewater Texas beginning at 7 00p m The public comment period begins September 23 2008 and ends October 23 2008 at the close of the public meeting The public meeting is legislative in

nature and not a contested case hearing under the Texas Government Code Chapter 2001 The meeting shall be held to discuss the proposed remedial action receive comments from the public on the proposed remedial action obtain additional information regarding the facility and identify any

additional potentially responsible parties

According to Section 361.187 of the Solid Waste Disposal Act PRPs have sixty 60 days following the public meeting on the proposed remedial action to respond in writing to the TCEQ with a Good Faith Offer to fully fund or conduct the proposed remedial action at the Site A Good Faith Offer is

defined at Section 335.342 5 of 30 Texas Administrative Code A Good Faith Offer may be made by submitting correspondence to the TCEQ Project Manager which states the PRP's intent to enter

into an Agreed Administrative Order with the TCEQ to fully fund or conduct a remedial action In

accordance with the sixty 60 day statutory time frame the Good Faith Offer must be received by the TCEQ Project Manager no later than 5 00 p m on December 22 2008 If after the public

meeting on the proposed remedial action the TCEQ determines that comments received at the public meeting will not significantly change the proposed remedial action then the TCEQ will again mail

PO Box 13087 • Austin Texas 78711 3087 • 512 239 1000 • Internet address www tceq state txus printed on recycled paper

VODA_AR_00017914 BAXTER OIL SERVICE LTD Page2 September 12 2008

notice to all identified PRPs to confirm that December 22 2008 is the date by which the Good Faith

Offer to fully fund or perform the proposed remedial action must be received by the TCEQ If a Good Faith Offer is made by all or some of the PRPs within this period those parties have an additional 60 days to negotiate an Agreed Administrative Order from the TCEQ which shall include

a scope of work The TCEQ may not require an admission of liability in the Agreed Administrative Order If a Good Faith Offer is not received within the specified time period the TCEQ will proceed

with an Administrative Order and may complete the remedial action utilizing state funds pursuant to the Solid Waste Disposal Act In such case the TCEQ will seek to recover all of its costs including oversight costs as set out in Section 361.197 of the Solid Waste Disposal Act

Enclosed is the Proposed Remedial Action Document which includes the proposed remedial action

alternatives Based on consideration of the requirements of the Solid Waste Disposal Act and 30 Texas Administrative Code Chapter 335 Subchapters K and S the TCEQ is proposing excavation

with off site disposal for the on site surface and subsurface soil containing contaminants above the applicable cleanup levels and the installation of reactive biobarrier wells with collection and analysis of groundwater samples to confirm that the reactive biobarrier system is reducing the concentrations

of contaminants in the shallow groundwater at the Site The reactive biobarrier system would remain

in place until it is demonstrated that the concentrations of contaminants in the groundwater no longer

exceed their applicable cleanup standards An institutional control would be placed on each property which overlies groundwater contaminated above the cleanup levels and would describe the specific

area of the contaminated groundwater plume on the affected property The institutional controls are

to be secured and implemented in accordance with the Texas Risk Reduction Program Rules and

would remain in place until it is demonstrated that concentrations of contaminants in groundwater no longer exceed the applicable cleanup levels These recommended alternatives are the most cost

effective reasonable and appropriate remedy to address the Site

Correspondence should be sent to my attention using mail code MC 136 at the address listed below and must include the following assigned reference number specified in this letter SUP0670016 If you have any questions please contact me at 512 239 2501 or email at cboucher tceq state txus

Carol Boucher P G Project Manager State Lead Section Remediation Division Texas Commission on Environmental Quality

VODA_AR_00017915 Notice of meeting on October 23 2008 in Clarksville City Texas concerning the

Voda Petroleum Inc Proposed state Superfund site

The purpose of the meeting is to obtain public input and information concerning the

proposed remedy for the site

The executive director of the Texas Commission on Environmental Quality TCEQ or

commission is issuing this public notice of a proposed selection of remedy for the Voda

Petroleum state Superfund site In accordance with 30 TAC 335.349 a concerning

requirements for the remedial action and Texas Health and Safety Code THSC 361.187 concerning the proposed remedial action a public meeting regarding the

commission's selection of a proposed remedy for the Voda Petroleum Inc Proposed

state Superfund site shall be held The statute requires that the commission shall

publish notice of the meeting in the Texas Register and in a newspaper of general

circulation in the county in which the facility is located at least 30 days before the date

of the public meeting

The public meeting is scheduled for Thursday October 23 2008 7 00p m at the

Broadway Elementary School Cafeteria 200 East Broadway in Gladewater Texas

The public meeting is not a contested case hearing under the Texas Government Code

Chapter 2001

The site for which a remedy is being proposed the Voda Petroleum Inc Proposed

state Superfund site the site was proposed for listing on the state registry of

Superfund sites in the November 17 2000 edition of the Texas Register 25 TexReg

11594 11595 The site is located at 211 Duncan Road Clarksville City Gregg County

Texas

Voda Petroleum Inc aka Ultra Oil was operated as a waste oil recycling facility from

1981 until it was abandoned in 1991 The site is located in a residential neighborhood

with occupied residences directly on the east and west sides of the facility A review of

the facility waste management activity records revealed that Voda Petroleum Inc aka

Ultra Oil had received stored and processed waste gasolines oily wastes used oil

VODA_AR_00017916 mixed with methyl ethyl ketone varsol trichloroethane toluene and hexane crude oil

greases and waxes In 1996 the EPA conducted an emergency removal of 462 55 gallon drums of grease or oily wastes 14 55 gallon drums of corrosive wastes 16

above ground tanks and associated contaminated soil The site was then backfilled to

approximate the undisturbed topography to facilitate site drainage The U S Environmental Protection Agency EPA post removal testing of soil and groundwater

samples indicated that soil and groundwater continued to be contaminated above

appropriate cleanup levels

A Feasibility Study FS dated January 2008 screened and evaluated remedial

alternatives which could be used to cleanup the site The FS report developed three 3 alternatives for remediation of surface and subsurface soils and three 3 alternatives

for shallow groundwater The commission prepared the Proposed Remedial Action

Document in June 2008 This document presents the proposed remedy and

justification for how this remedy demonstrates compliance with the relevant cleanup

standards

Based on the calculated volume of contaminated soil and the requirement for protection

of groundwater the recommended soil remedial alternative from the FS is excavation

with offsite disposal The recommended alternative is the most cost effective

reasonable and appropriate remedy to address the contaminated soil at the site

As the shallow groundwater at the site is considered a usable groundwater resource

the groundwater must be cleaned up to drinking water standards The Feasibility Study

recommended the installation of two reactive biobarriers systems The downgradient

biobarrier would consist of a line of 64 biosubstrate injection points oriented in a 320 ft

line along the margin of the plume A second biobarrier would be installed near the

source area and would consist of a line of 36 injection points along a 180 foot line The

passive barrier would be constructed by injecting biosubstrate in the upper 22 ft of the

saturated zone at injection points spaced 5 ft apart The biosubstrate would be capable

of providing a long lasting source of dissolved oxygen to promote sustained aerobic

biodegradation The recommended alternative is the most cost effective reasonable

and appropriate remedy to address the contaminated groundwater at the site

VODA_AR_00017917 All persons desiring to make comments may do so prior to or at the public meeting All

comments submitted prior to the public meeting must be received by 5 00p m on

October 22 2008 and should be sent in writing to Ms Carol Boucher PG Project

Manager TCEQ Remediation Division MC 136 P 0 Box 13087 Austin Texas

78711 3087 or facsimile at 512 239 2450 The public comment period for this action

will end at the close of the public meeting on October 23 2008

A portion of the record for this site including documents pertinent to the proposed

remedy is available for review during regular business hours at the Longview Public

Library 222 West Cotton Street Longview Texas 75601 903 237 1350 Copies of

the complete public record file may be obtained during business hours at the

commission's Records Management Center Building E First Floor Records Customer

Service MC 199 12100 Park 35 Circle Austin Texas 78753 800 633 9363 or 512

239 2920 Photocopying of file information is subject to payment of a fee Parking for

person with disabilities is available on the east side of Building D convenient to access

ramps that are between Buildings D and E

Information is also available regarding the state Superfund program at

www tceq state tx usremediation superfund sites index html

Persons with disabilities who have special communication or other accommodation

needs who are planning to attend the meeting should contact the agency at

1 800 633 9363 or 512 239 2141 Requests should be made as far in advance as

possible

For further information about this site or the public meeting please call Bruce McAnally

TCEQ Community Relations at 1 800 633 9363 extension 2141

VODA_AR_00017918 Buddy Garcia Chairman Larry R Soward Commissioner

Bryan W Shaw Ph D Commissioner

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Protecting Texas by Reducing and Preventing Pollution

CERTIFIED MAIL 91 7108 2133 3934 5604 8287

BAXTER OIL SERVICE LTD MR SAM BAXTER PRESIDENT POBOX20255 BEAUMONT TX 77720 0255

Re Proposed Remedial Action for the Voda Petroleum Inc Proposed State Superfund Site Clarksville City Gregg County Texas

Pursuant to the Texas Solid Waste Disposal Act Tex Health Safety Code Ch 361 the Texas Commission on Environmental Quality TCEQ is required to publish notice of a public meeting to

discuss the proposed remedial action for the Voda Petroleum Inc Proposed State Superfund Site The TCEQ shall publish notice of the meeting in the Texas Register and in a newspaper circulating in

the county in which the facility is located at least 30 days before the date of the public meeting The TCEQ is also required to mail the same information to each potentially responsible party PRP by certified mail return receipt requested at least 30 days before the public meeting This letter is to

notify you that the TCEQ will publish a notice of the public meeting to discuss the proposed remedial

action for the Voda Petroleum Inc Proposed State Superfund Site The notice is scheduled to be published in the Texas Register and the Longview News Journal on September 19 2008 The notice will provide information regarding the proposed remedial action and the date time and place of the

The public meeting for the Voda Petroleum Inc Proposed State Superfund Site is schedul ed for Thursqay October 23 2008 in the Broadway Elementary School Cafeteria 200 East Broadway Gladewater Texas beginning at 7 00p m Tbe public comment period begins September 23 2008 and ends October 23 2008 at the close of the public meeting The public meeting is legislative in

nature and not a contested case hearing under the Texas Government Code Chapter 2001 The meeting shall be held to discuss the proposed remedial action receive comments from the public on the proposed remedial action obtain additional information regarding the facility and identify any additional potentially responsible parties

According to Section 361.187 of the Solid Waste Disposal Act PRPs have sixty 60 days following the public meeting on the proposed remedial action to respond in writing to the TCEQ with a Good Faith Offer to fu lly fund or conduct the proposed remedial action at the Site A Good Faith Offer is

defined at Section 335.342 5 of 30 Texas Administrative Code A Good Faith Offer may be made by submitting correspondence to the TCEQ Project Manager which states the PRP's intent to enter

into an Agreed Administrative Order with the TCEQ to fully fund or conduct a remedial action In

accordance with the sixty 60 day statutory time frame the Good Faith Offer must be received by the TCEQ Project Manager no later than 5 00 p m on December 22 2008 If after the public

meeting on the proposed remedial actjon the TCEQ determines that comments received at the public meeting will not significantly change the proposed remedial action then the TCEQ will again mail

PO Box 13087 • Austin Texas 78711 3087 • 512 239 1000 • Internet address www tceq state tx us printed on recycled paper

VODA_AR_00017945 BAXTER OIL SERVICE LTD Page2 September 12 2008

notice to all identified PRPs to confirm that December 22 2008 is the date by which the Good Faith Offer to fully fund or perform the proposed remedial action must be received by the TCEQ If a

Good Faith Offer is made by all or some of the PRPs within this period those parties have an additional 60 days to negotiate an Agreed Administrative Order from the TCEQ which shall include a scope of work The TCEQ may not require an admission of liability in the Agreed Administrative Order If a Good Faith Offer not received within the specified time period the TCEQ will proceed is

with an Administrative Order and may complete the remedial action utilizing state funds pursuant to

the Solid Waste Disposal Act In such case the TCEQ will seek to recover all of its costs including oversight costs as set out in Section 361.197 of the Solid Waste Disposal Act

Enclosed is the Proposed Remedial Action Document which includes the proposed remedial action alternatives Based on consideration of the requirements of the Solid Waste Disposal Act and 30 Texas Administrative Code Chapter 335 Subchapters K and S the TCEQ is proposing excavation with off site disposal for the on site surface and subsurface soil containing contaminants above the applicable cleanup levels and the installation of reactive biobarrier wells with collection and analysis of groundwater samples to confirm that the reactive biobarrier system is reducing the concentrations

of contaminants in the shallow groundwater at the Site The reactive biobarrier system would remain

in place until it is demonstrated that the concentrations of contaminants in the groundwater no longer exceed their applicable cleanup standards An institutional control would be placed on each property which overlies groundwater contaminated above the cleanup levels and would describe the specific

area ofthe contaminated groundwater plume on the affected property The institutional controls are to be secured and implemented in accordance with the Texas Risk Reduction Program Rules and would remain in place until it is demonstrated that concentrations of contaminants in groundwater no

longer exceed the applicable cleanup levels These recommended alternatives are the most cost effective reasonable and appropriate remedy to address the Site

Correspondence should be sent to my attention using mail code MC 136 at the address listed below and must include the following assigned reference number specified in this letter SUP0670016 If you

L have any questions please contact me at 512 239 2501 or email at cboucher tceq state txus

Carol Boucher P G Project Manager State Lead Section Remediation Division Texas Commission on Environmental Quality

VODA_AR_00017946 UNITEDSTilTE5 o6 POSTl L SERVICE

Date Produced 09 29 2008

TEXAS COMMISSION ON ENVIRONMENTAL QUALIT

The following is the delivery information for Certified Mail ™item number 7108 2133 3934 5604 8287 Our records indicate that this item was delivered on 09 24 2008 at 11 07 a m in

BEAUMONT TX 77707 The scanned image of the recipient information is provided below

rv XJ1er Signature of Recipient t4of

Address of Recipient 0 5 Thank you for selecting the Postal Service for your mailing needs If you require additional assistance please contact your local post office or Postal Service representitive

United States Postal Service

The customer reference number shown below is not validated or endorsed by the United States Postal Service It is solely for customer use

Customer Reference Number 136

VODA_AR_00017947 VODA_AR_00017948 Buddy Garcia Chaitman Larry R Soward Commissioner Bryan W Shaw Ph D Commissioner

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Protecting Texas by Reducing and Preventing Pollution

CERTIFIED MAIL 91 7108 2133 3934 5604 8294

BAXTER OIL SERVICE LTD MR SAM BAXTER PRESIDENT 5070 IRVING ST BEAUMONT TX 77705 5231

Re Proposed Remedial Action for the Voda Petroleum Inc Proposed State Superfund Site

Pursuant to the Texas Solid Waste Disposal Act Tex Health Safety Code Ch 361 the Texas Commission on Environmental Quality TCEQ is required to publish notice of a public meeting to

discuss the proposed remedial action for the Voda Petroleum Inc Proposed State Superfund Site

The TCEQ shall publish notice of the meeting in the Texas Register and in a newspaper circulating in

the county in which the facility is located at least 30 days before the date of the public meeting The TCEQ is also required to mail the same information to each potentially responsible party PRP by certified mail return receipt requested at least 30 days before the public meeting This letter is to

notify you that the TCEQ will publish a notice of the public meeting to discuss the proposed remedial

action for the Voda Petroleum Inc Proposed State Superfund Site The notice is scheduled to be

published in the Texas Register and the Longview News Journal on September 19 2008 The notice will provide information regarding the proposed remedial action and the date time and place of the meeting which is also included in this letter

The public meeting for the Voda Petroleum Inc Proposed State Superfund Site is scheduled for Thursday October 23 2008 in the Broadway Elementary School Cafeteria 200 East Broadway Gladewater Texas beginning at 7 00p m The public comment period begins September 23 2008 and ends October 23 2008 at the close of the public meeting The public meeting is legislative in

nature and not a contested case hearing under the Texas Government Code Chapter 2001 The meeting shall be held to discuss the proposed remedial action receive comments from the public on the proposed remedial action obtain additional information regarding the facility and identify any

According to Section 361 187 of the Solid Waste Disposal Act PRPs have sixty 60 days following the public meeting on the proposed remedial action to respond in writing to the TCEQ with a Good Faith Offer to fully fund or conduct the proposed remedial action at the Site A Good Faith Offer is

defined at Section 335.342 5 of 30 Texas Administrative Code A Good Faith Offer may be made by submitting correspondence to the TCEQ Project Manager which states the PRP's intent to enter

into an Agreed Administrative Order with the TCEQ to fully fund or conduct a remedial action In

accordance with the sixty 60 day statutory time frame the Good Faith Offer must be received by the TCEQ Project Manager no later than 5 00 p m on December 22 2008 f after the public meeting on the proposed remedial action the TCEQ determines that comments received at the public

meeting wiiJ not significantly change the proposed remedial action then the TCEQ will again mail

PO Box 13087 • Austin Texas 78711 3087 • 512 239 1000 • Internet address www tceq state tx us printed on recycled paper

VODA_AR_00017949 BAXTER OIL SERVICE LTD Page2 September 12 2008

notice to all identified PRPs to confirm that December 22 2008 is the date by which the Good Faith Offer to fully fund or perform the proposed remedial action must be received by the TCEQ If a Good Faith Offer is made by all or some of the PRPs with in this period those parties have an additional 60 days to negotiate an Agreed Administrative Order from the TCEQ which sbaU include a scope of work Tbe TCEQ may not require an admission of liability in the Agreed Administrative Order If a Good Faith Offer is not received within the specified time period the TCEQ will proceed with an Administrative Order and may complete the remedial action utilizing state funds pursuant to

the Solid Waste Disposal Act In such case the TCEQ will seek to recover all of its costs including oversight costs as set out in Section 361.197 of the Solid Waste Disposal Act

Enc1osed is the Proposed Remedial Action Document which incJudes the proposed remedial action alternatives Based on consideration of the requirements of the Solid Waste Disposal Act and 30 Texas Administrative Code Chapter 335 Subchapters K and S the TCEQ is proposing excavation with off site disposal for the on site surface and subsurface soil containing contaminants above the

applicable cleanup levels and the installation of reactive biobarrier wells witb collection and analysis of groundwater samples to confirm that the reactive biobarrier system is reducing the concentrations

of contaminants in the shallow groundwater at the Site The reactive biobarrier system would remain in place until it is demonstrated that the concentrations of contaminants in the groundwater no longer exceed their applicable cleanup standards An institutional control would be placed on each property which overlies groundwater contaminated above the cleanup levels and would describe the specific

area of the contaminated groundwater plume on the affected property The institutional controls are to be secured and implemented in accordance with the Texas Risk Reduction Program Rules and would remain in place until it is demonstrated that concentrations of contaminants in groundwater no longer exceed the applicable cJeanup levels These recommended alternatives are the most cost effective reasonable and appropriate remedy to address the Site

Correspondence should be sent to my attention using mail code MC 136 at the adaress listed below and

L must include the following assigned reference number specified in this letter SUP0670016 Ifyou have any questions please contact me at 512 2392501 or email at cboucher tceq state tx us

Carol Boucher PG Project Manager State Lead Section

Remediation Division Texas Commission on Environmental Quality

VODA_AR_00017950 6b UNITED STIJTES POSTAL SERVTCE w

Date Produced 11 03 2008

The following is the delivery information for Certified Mail ™ item number 7108 2133 3934 5604 8294 Our records indicate that this item was delivered on 10 28 2008 at 03 20 p m in

BEAUMONT TX 77705 The scanned image of the recipient information is provided below

Signature of Recipient

Address of Recipient

Thank you for selecting the Postal Service for your mailing needs If you require additional assistance please contact your local post office or Postal Service representitive

The customer reference number shown below is not validated or endorsed by the United States Postal Service It is solely for customer use

VODA_AR_00017951 Buddy Garcia Chairman Larry R Soward Commissioner

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Protecting Texas by Reducing and Preventing Pollution

CERTIFIED MAIL 91 7108 2133 3934 5604 8300

BAXTER OIL SERVICE LTD MR SAM BAXTER PRESIDENT RR8BOX50 BEAUMONT TX 77720

Re Proposed Remedial Action for the Voda Petroleum Inc Proposed State Superfund Site Clarksville City Gregg County Texas

Pursuant to the Texas Solid Waste Disposal Act Tex Health Safety Code Ch 361 the Texas Commission on Environmental Quality TCEQ is required to publish notice of a pubHc meeting to

discuss the proposed remedial action for the Voda Petroleum Inc Proposed State Superfund Site

The TCEQ shall publish notice of the meeting in the Texas Register and in a newspaper circulating in

the county in which the facility is located at least 30 days before the date of the public meeting The TCEQ is also required to mail the same information to each potentially responsible party PRP by certified mail return receipt requested at least 30 days before the public meeting This letter is to

notify you that the TCEQ wiiJ publish a notice of the public meeting to discuss the proposed remedial

action for the Voda Petroleum Inc Proposed State Superfund Site The notice is scheduled to be

published in the Texas Register and the Longview News Journal on September 19 2008 The notice will provide informatiqn regarding the proposed remedial action and the date time and place of the meeting which is also included in this letter

The public meeting for the Voda Petroleum Inc Proposed State Superfund Site is scheduled for

Thursday October 23 2008 in the Broadway Elementary School Cafeteria 200 East Broadway Gladewater Texas beginning at 7 00pm The public comment period begins September 23 2008 and ends October 23 2008 at the close of the public meeting The public meeting is legislative in

nature and not a contested case hearing under the Texas Government Code Chapter 2001 The meeting shall be held to discuss the proposed remedial action receive comments from the public on the proposed remedial action obtain additional information regarding the facility and identify any additional potentially responsible parties

According to Section 361.187 of the Solid Waste Disposal Act PRPs have sixty 60 days following the public meeting on the proposed remedial action to respond in writing to the TCEQ with a Good Faith Offer to fully fund or conduct the proposed remedjal action at the Site A Good Faith Offer is

defined at Section 335.342 5 of 30 Texas Administrative Code A Good Faith Offer may be made by submitting correspondence to the TCEQ Project Manager which states the PRP's intent to enter

into an Agreed Administrative Order with the TCEQ to fully fund or conduct a remedial action In

accordance with the sixty 60 day statutory time frame the Good Faith Offer must be received by the TCEQ Project Manager no later than 500 p m on December 22 2008 If after the public

meeting on the proposed remedial action the TCEQ determines that comments received at the public meeting will not significantly change the proposed remedial action then the TCEQ will again mail

PO Box 13087 • Austin Texas 78711 3087 • 512 239 1000 • Internet address www tceq state txus printed on recycled paper

VODA_AR_00017952 BAXTER OIL SERVICE LTD Page2 September 12 2008

notice to all identified PRPs to confirm that December 22 2008 is the date by which the Good Faith

Offer to fully fund or perform the proposed remedial action must be received by the TCEQ If a Good Faith Offer is made by aiJ or some of the PRPs within this period those parties have an

additional 60 days to negotiate an Agreed Administrative Order from the TCEQ which shall include

a scope ofwork The TCEQ may not require an admission of liability in the Agreed Administrative Order If a Good Faith Offer is not received within the specified time period the TCEQ will proceed with an Administrative Order and may complete the remedial action utilizing state funds pursuant to

the Solid Waste Disposal Act ln such case the TCEQ wiU seek to recover aU of its costs including oversight costs as set out in Section 361.197 ofthe Solid Waste Disposal Act

Enclosed is the Proposed Remedial Action Document which includes the proposed remedial action

alternatives Based on consideration of the requirements of the Solid Waste Disposal Act and 30 Texas Administrative Code Chapter 335 Subchapters K and S the TCEQ is proposing excavation with off site disposal for the on site sutface and subsurface soil containing contaminants above the

applicable cleanup levels and the installation of reactive biobarrier wells with collection and analysis

of groundwater samples to confirm that the reactive biobarrier system is reducing the concentrations of contaminants in the shaJlow groundwater at the Site The reactive biobarrier system would remain

in place until it is demonstrated that the concentrations of contaminants in the groundwater no longer exceed their applicable cleanup standards An institutional control would be placed on each property which overlies groundwater contaminated above the cleanup levels and would describe the specific

area ofthe contaminated groundwater plume on the affected property The institutional controls are

to be secured and implemented in accordance with the Texas Risk Reduction Program Rules and would remain in place until it is demonstrated that concentrations of contaminants in groundwater no longer exceed the applicable cleanup levels These recommended alternatives are the most cost effective reasonable and appropriate remedy to address the Site

Correspondence should be sent to my attention using mail code MC136 at the address listed below and must include the following assigned reference number specified in this letter SUP0670016 If you

L have any questions please contact me at 512 239 2501 or email at cboucher tceg state tx us

Carol Boucher PG Project Manager State Lead Section Remediation Division Texas Commission on Environmental Quality

CB sr

VODA_AR_00017953 o6 f UNITED STATES POSTIJL SERVICE

The following is the delivery information for Certified Mail ™ item number 7108 2133 3934 5604 8300 Our records indicate that this item was delivered on 09 25 2008 at 12 32 in pm BEAUMONT TX 77707 The scanned image of the recipient information is provided below

Thank you for selecting the Postal Service for your mailing needs If you require additional assistance please contact your local post office or Postal Service representitive

The customer reference number shown below is not validated or endorsed by the United States Postal Service It is solely for customer use

VODA_AR_00017954 November 6 2000

CERTIFIED MAIL Z 444 998 482

RETURN RECEIPT REQUESTED

BAXTER S OIL SERVICE INC Mr Sam Baxter PO Box 20255 RR 8 Box 50

Beaumont TX 77720

Re Voda Petroleum Inc Clarksville City Gregg County Texas

Dear Mr Baxter

This letter is a notification that the Texas Natural Resource Conservation Commission TNRCC considers BAXTER'S OIL SERVICE INC to be a Potentially Responsible Party PRP for the Voda Petroleum Inc site located at 211 Duncan Road in Clarksville City Gregg County Texas A description of the site is included with this letter as Enclosure 3 Potentially Responsible Parties

include current and former landowners and facility operators and persons who were involved in the

generation transport storage processing or disposal of solid waste at the site Person is defined

at 361.003 of the Texas Solid Waste Disposal Act TEX HEALTH AND SAFETY CODE Chapter 361 to mean an individual corporation organization government or governmental subdivision or agency business trust partnership association or other legal entity A copy of pertinent portions of the

Texas Solid Waste Disposal Act and Title 30 ofthe Texas Administrative Code TAC Subchapter

K are enclosed Also enclosed for your convenience is a list of persons which the TNRCC considers to be PRPs for this site This letter is also a notification that the TNRCC has conducted

a reasonable search for PRPs

The TNRCC is required by the Texas Solid Waste Disposal Act to identify and assess facilities that

may constitute an imminent and substantial endangerment to public health and safety or the

environment due to a release or threatened release of hazardous substances The Voda site has been

identified as such a facility therefore it is eligible for listing on the Registry of State Superfund Sites

the Registry For this reason the site was referred to the Superfund Cleanup Section by the Superfund Site Discovery and Assessment Team ofTNRCC for further action

VODA_AR_00030601 BAXTER'S OIL SERVICE INC November 6 2000

Page2

NOTICE OF INTENT TO LIST VODA PETROLEUM INC SITE ON THE REGISTRY OF STATE SUPERFUND SITES

The TNRCC will publish a notice of intent to list the facility on the state registry in the Texas

Register on December 1 2000 and in the Longview News Journal Gregg County Texas on

December 1 2000 This notice provides interested parties the opportunity to submit written

comments to the TNRCC concerning the proposed listing on the Registry and the identification

of PRPs or attend a public meeting to discuss the proposed listing Under Section 361.184 a of

the Texas Solid Waste Disposal Act the TNRCC shall publish notice of the meeting in the Texas

Register and in a newspaper of general circulation in the county in which the facility is located at

least 30days before the date of the public meeting The notice shall provide the date time place

of the meeting The TNRCC has scheduled a public meeting for 7 00p m January 11 2001 at

the City Hall Council Chambers located at 631 US 80 in Clarksville City Texas

GOOD FAITH OFFER TO COMPLETE RifFS

According to Texas Solid Waste Disposal Act 361.185 PRPs have 90 days following the date

of notice of the TNRCC's intent to list the facility on the Registry not later than 5 00 p m March 1 2001 to respond in writing to TNRCC with a Good Faith Offer to fully fund or conduct

a Remedial Investigation Feasibility Study RifFS at the site A Good Faith Offer is defined at

30 TAC 335.342 The purpose of an RifFS is to determine the nature and extent of

contamination associated with the site and evaluate potential remedial options A Good Faith

Offer may be made by submitting correspondence which states the PRP's intent to enter into an

agreed administrative order with the TNRCC to fully fund or perform an RifFS

If a Good Faith Offer is received by the TNRCC within the specified time period respondents

will have an additional sixty 60 days to negotiate an agreed administrative order including a

scope ofwork to fully fund or conduct an RifFS

If a good faith offer to fully fund or conduct an RI FS is not received within the specified time

period the TNRCC may complete the RifFS utilizing state funds or may issue an administrative

order to require the implementation of an RifFS in accordance with Texas Solid Waste Disposal Act 361.272 If an agreed administrative order is not successfully negotiated within the

specified time period the TNRCC will seek to recover all of its costs including oversite costs as

set out in Texas Solid Waste Disposal Act 361.197

VODA_AR_00030602 BAXTER S OIL SERVICE INC November 6 2000 Page 3

REQUEST FOR PRODUCTION OF FINANCIAL DOCUMENTS

In accordance with Texas Solid Waste Disposal Act 361.201 and 30 TAC 335.347 the

executive director of the TNRCC will make a determination whether a PRP is financially capable

of participating in a facility investigation or remediation The executive director may submit requests for the production of documents by any person who has or may have information

relevant to the ability of a person to pay for or perform an investigation or a remedial action at a

State Superfund site under Texas Solid Waste Disposal Act 361.182 Therefore if you believe that you are financially incapable of funding or conducting an RifFS the TNRCC hereby requests the production of financial information and documents to determine whether you are financially capable of participating in a facility investigation or remediation

The requested financial information must be submitted to the TNRCC not later than 5 00p m on January 15 2001 to allow TNRCC time to evaluate the information before the end of the 90 day good faith offer period

BANKRUPTCY

If you believe that your responsibility as a PRP has been Discharged in Bankruptcy under Title 11

United States Code USC Section 524 or if you contend that this action is stayed pursuant to 11

USC Section 362 due to a pending bankruptcy proceeding PLEASE IMMEDIATELY provide us

with certified file stamped copies of the following documents from the bankruptcy court where

your bankruptcy case was filed so that these pleadings can be immediately reviewed and

appropriate action taken 1 Petition 2 Schedules and Statement of Affairs 3 Matrix along

with the following pleadings if applicable 4 Disclosure Statement 5 Plan of Reorganization

6 Order Confirming Plan of Reorganization and 7 Discharge Order Please also furnish any

additional pleadings from the bankruptcy court which you or your attorneys believe to be relevant

to your responsibilities for the site

NOTICE FOR CHANGE IN USE OF FACILITY

Please be aware that according to Texas Solid Waste Disposal Act 361.186 the owner or

operator of the site must provide the TNRCC with a written notice of any proposed substantial

changes in the use of the site sixty 60 days prior to any proposed change in use A substantial

change in use includes but is not limited to such actions as

• erection of a building or other structure

• agricultural activities

• paving for use as a roadway or parking lot

• creation of a park or other public or private recreational facility and

• any other activity which might interfere with an RifFS

VODA_AR_00030603 BAXTER'S OIL SERVICE INC November 6 2000

Page4

In addition to the above please be aware that according to 30 TAC 335.346 a no person may perform any partial or total removal activities at State Superfund sites or conduct on site sampling testing or preliminary investigations of any type without the advance written

authorization of TNRCC

REVIEW AND COPIES OF SITE RECORDS

Interested parties may review site records during normal business hours at

Texas Natural Resource Conservation Commission Central Records

Building D Room 190

12100 Park 35 Circle

Austin Texas 78753

Building D of the TNRCC contains a copy service which is available for copying file information

for a fee which may be billed to the requestor Due to manpower limitations TNRCC is unable

to provide copies of file material in response to telephone calls

MAILING ADDRESS OF TNRCC PROJECT MANAGER

The mailing address of the Superfund Cleanup Section Project Manager for the Voda Petroleum Site is

Ms Carol Boucher MC 143 Superfund Cleanup Section

Texas Natural Resource Conservation Commission P 0 Box 13087

Austin Texas 78711 3087

If you have any questions concerning this matter please call me at 512 239 2493

Carol Boucher Project Manager Superfund Cleanup Section

cc Mr Garrett Arthur TNRCC Legal

Enclosure 1 List of PRPs

Enclosure 2 Texas Solid Waste Disposal Act Sections 361.182 361.184 361.185 361.186

361.197 361.271 and 30 Texas Administrative Code Subchapter K 335.342 335.346 and 335.347

Enclosure 3 Legal Description of the site

VODA_AR_00030604 I l o Q L c

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0 Insured Mail 0 COD 4 Restricted Delivery Extra Fee 0 Yes

2 Article Number

Return Receipt 102595 99 M 171 I

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9 so that we can return the card to you back mail piece I N ci l 111 Attach this card to the of the PS Form 3800 u t o DO Apri1 1995 o U Jl

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Domestic Return Receipt 102595 99 M 1789 PS Form 3811 July 1999

VODA_AR_00030605 1 17251 Buddy Garcia Chairman

Larry R Soward Commissioner 5 Of rJO C Bryan W Shaw Ph D Commissioner Mark R Vickery PG Executive Director

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Protecting Texas by Reducing and Preventing Pollution

June 2 2009

BAXTER OIL SERVICE INC POBOX20255 BEAUMONT TX 77720 0255

Re Voda Petroleum Inc Proposed State Superfund Site Clarksville City Gregg County Texas

Extension of Deadline for Response Concerning Good Faith Offer

DEAR SIR I MADAM

The Texas Commission on Environmental Quality TCEQ is extending the deadline for making a good faith offer to fully fund or perform the proposed remedial action at the above referenced site The deadline is extended thirty 30 days from the expiration of the prior deadline therefore the new deadline

is Monday June 22 2009

Correspondence to the TCEQ regarding the Voda site should be sent to my attention using mail code MC 136 at the address listed below and must include the following assigned reference number specified in

this letter SUP0670016 If you have any questions please contact me t• 5•12 239 2501 or

cboucher tceq state tx us

Texas Commission on Environmental Quality PO Box 13087 MC 136 Austin TX 78711 3087

Carol Boucher PG Project Manager SSDAP Superfund Section

Remediation Division

PO Box 13087 • Austin Texas 78711 3087 • 512 239 1000 • Internet address www tceq state tx us prmted on recycled pilper

VODA_AR_00033053 Buddy Garcia Chairman

Larry R Soward Commissioner Bryan W Shaw Ph D Commissioner Mark R Vickery P G Executive Director

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Protecting Texas by Reducing and Preventing Pollution

March 2 2009

BAXTER OIL SERVICE INC BAXTER OIL SERVICE INC P 0 BOX 20255 BEAUMONT TX 77720 0255

Re Voda Petroleum Inc Proposed State Superfund Site Clarksville City Gregg County Texas Extension of Deadline for Response Concerning Good Faith Offer

The Texas Commission on Environmental Quality TCEQ is extending the deadline for making a good faith offer to fully fund or perform the proposed remedial action at the above referenced site The deadline is extended ninety 90 days from the expiration of the prior deadline therefore the new deadline is Friday May 21 2009 As stated in prior correspondence potentially responsible parties

PAPs are provided by statute the opportunity to make a good faith offer to fully fund or perform the proposed remedial action at the site If a good faith offer is made by all or some of the PAPs before the

new deadline of May 21 2009 those parties will have an additional sixty 60 days to negotiate an Agreed Administrative Order with the TCEQ to fully fund or perform the selected remedial action As part of the Agreed Administrative Order the PAPs must also reimburse the TCEQ's expendi ures for the site in accordance with Section 361 188 of the Texas Health and Safety Code

This extension is granted at the request of the Voda Site Group Group a group of potentially

responsible parties PAPs voluntarily formed for the purpose of negotiating a settlement and final

administrative order with the TCEQ As stated in the Texas Administrative Code and underscored in this

correspondence the executive director's ED goal in negotiating settlements is to obtain a complete

remedial investigation and remedial action by PAPs or to collect from PAPs 100 percent of the agency's cost s Tex Admin Code 335.351 a The ED anticipates working closely with the Group

to achieve this goal and encourages all PAPs to join the Group and participate in the process The law affords several important advantages and opportunities to cooperative parties and participating PAPs For more information about the Group please contact Steve Morton Moltz Morton O'Toole LLP at 512 439 2172 orsmorton mmotlaw com

Correspondence to the TCEQ regarding the Voda site should be sent to my attention using mail code MC 136 at the address listed below and must include the following assigned reference number specified in this letter SUP0670016 If you have any questions please contact me at 512 239 2501 or cboucher tceg state txus

lfiL Carol Boucher P G Project Manager

State Lead Section Remediation Division

PO Box 13087 • Austin Texas 78711 3087 • 512 239 1000 • Internet address www tceq state tx us printed on recycled paper

VODA_AR_00033054 Buddy Garcia Chairman

Larry R Soward Commissioner

Bryan W Shaw Ph D Commissioner Mark R Vickery PG Executive Director

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Protecting Texas by Reducing and Preventing Pollution

BAXTER OIL SERVICE INC SAM L BAXTER 5070 IRVING ST BEAUMONT TX 77705 5231

Re Voda Petroleum Inc Proposed State Superfund Site Clarksville City Gregg County Texas Extension of Deadline for Response Concerning Good Faith Offer

The Texas Commission on Environmental Quality TCEQ is extending the deadline for making a good

faith offer to fully fund or perform the proposed remedial action at the above referenced site The deadline is extended ninety 90 days from the expiration of the prior deadline therefore the new deadline is Friday May 21 2009 As stated in prior correspondence potentially responsible parties

PAPs are provided by statute the opportunity to make a good faith offer to fully fund or perform the proposed remedial action at the site If a good faith offer is made by all or some of the PAPs before the new deadline of May 21 2009 those parties will have an additional sixty 60 days to negotiate an Agreed Administrative Order with the TCEQ to fully fund or perform the selected remedial action As pc rt of the Agreed Administrative Order the PAPs must also reimburse the TCEQ's expenditures for the site in accordance with Section 361.188 of the Texas Health and Safety Code

This extension is granted at the request of the Voda Site Group Group a group of potentially

responsible parties PAPs voluntarily formed for the purpose of negotiating a settlement and final

administrative order with the TCEQ As stated in the Texas Administrative Code and underscored in this

correspondence the executive director's ED goal in negotiating settlements is to obtain a complete

remedial investigation and remedial action by PAPs or to collect from PAPs 100 percent of the

agency's cost s Tex Admin Code 335.351 a The ED anticipates working closely with the Group to achieve this goal and encourages all PAPs to join the Group and participate in the process The law affords several important advantages and opportunities to cooperative parties and participating PAPs Group please For more information about the contact Steve Morton Moltz Morton O'Toole LLP at

512 439 2172 or smorton mmotlaw com

Correspondence to the TCEQ regarding the Voda site should be sent to my attention using mail code

MC 136 at the address listed below and must include the following assigned reference number specified in this letter SUP0670016 If you have any questions please contact me at 512 239 2501 or cboucher tceg state txus

L Sincerely

Carol Boucher PG Project Manager State Lead Section Remediation Division

PO Box 13087 • Austin Texas 78711 3087 • 512 239 1000 • Internet address www tceq state tx us printed on recycled pnper

VODA_AR_00033055 Buddy

Larry R Garcia Chairman

Soward Commissioner SC35 Bryan W Shaw Ph D Commissioner c7 oo Mark R Vickery P G Executive Director

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Protecting Texas by Reducing and Preventing Pollution

January 5 2009

BAXTER OIL SERVICE INC BAXTER OIL SERVICE INC POBOX20255 BEAUMONT TX 77720 0255

Re Voda Petroleum Inc Proposed State Superfund Site

SUP0670016

You are invited to a settlement conference in the referenced matter as follows

Date Monday February 2 2009

Time 1 00 p m Place TCEQ Austin Headquarters

Bldg E Agenda Room E201S 12100 Park 35 Circle See attached map Austin Texas 78753

You may participate by conference call if you prefer however please be aware that the call is limited to 125 participants due to technical constraints

Dial in number 1 866 456 0016

Expect an 8 to 10 second delay before connection is made Conference room number 5033661

The purpose of this meeting is to facilitate the forming of a PRP potentially responsible party group and the beginning of negotiations among the PRPs toward a settlement agreement with the Texas Commission

on Environmental Quality Copies of relevant evidence will be available or can be ordered Please try to

attend in person or by phone or send a representative

Thank you for your cooperation in this matter

Carol Boucher PG Project Manager State Lead Section Remediation Division

PO Box 13087 • Austin Texas 78711 3087 • 512 239 1000 • Internet address www tceq state tx us printed on recycled paper

VODA_AR_00033056 Buddy Garcia Chairman

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Protecting Texas by Reducing and Preventing Pollution

December 12 2008

BAXTER OIL SERVICE LTD POBOX20255 BEAUMONT TX 77720 0255

Re Voda Petroleum Inc Proposed State Superfund Site Clarksville City Gregg County Texas Confirmation of Sixty 60 Day Good Faith Offer Period to Conduct Remedial Design Remedial Action RD RA

On October 23 2008 the Texas Commission on Environmental Quality TCEQ conducted a public meeting to present the proposed remedial actions for the Voda Petroleum Inc Proposed State Superfund

Site Site A TCEQ letter dated September 12 2008 was sent to notify all identified potentially

responsible parties PRPs for the Site about a public meeting to provide notice of the date of the statuary

Good Faith Offer period and to provide a copy of the Proposed Remedial Action Document PRAD which described the proposed remedial alternatives available for the site

The public comment period for the proposed remedial action ended on October 23 2008 The TCEQ has reviewed and considered all public comments a summary of which is enclosed and determined that no

modification to the proposed remedial alternatives is needed Accordingly the TCEQ has selected

excavation with offsite disposal for the contaminated soil and enhanced bioremediation using reactive

biobarriers for the contaminated groundwater as the final remedial actions for the Site

This letter serves to confirm the dates for the Good Faith Offer period as established in the TCEQ's September 12 2008 letter As described in that letter any Good Faith Offer must be received in writing

by the TCEQ's Project Manager no later than 5 00p m on December 22 2008 However a request to

extend the Good Faith Offer period has been received and granted by the TCEQ Therefore any Good Faith Offer must be received in writing by the TCEQ's Project Manager no later than 5 00 p m on February 20 2009

According to Section 361.187 of the Texas Health and Safety Code Code PRPs have sixty 60 days following the public meeting on the proposed remedy to respond in writing to the TCEQ with a Good

Faith Offer to fully fund or conduct the proposed remedial actions at the Site A Good Faith Offer is

defined at Section 335.342 5 of 30 Texas Administrative Code If a Good Faith Offer is made by some or all of the potentially responsible parties before the extended deadline of February 20 2009 those

parties have up to an additional sixty 60 days to negotiate an Agreed Administrative Order pursuant to

Section 361.188 of the Code to fully fund perform the selected remedial actions As part of the Agreed Administrative Order the potentially responsible parties must also reimburse the TCEQ's past

expenditures for the Site

If a Good Faith Offer is not received within the specified time period the TCEQ may complete the

remedial actions utilizing state funds and pursue cost recovery actions against responsible parties to

recover all response costs pursuant to Section 361.197 for the Code

P O Box 13087 • Austin Texas 78711 3087 • 512 239 1000 • Internet address www tceq state tx us prinlcd on rccydcd paper

VODA_AR_00033057 BAXTER OIL SERVICE LTD Page 2 December 12 2008

The TCEQ has prepared an updated PRP contact information spreadsheet If you would like a copy of this spreadsheet please contact the TCEQ Project Manager and a copy will be sent to you via regular

mail email or facsimile Please be sure to include a current mailing address email address or facsimile telephone number with your request

As the TCEQ Project Manager for the Site my contact information is

Carol Boucher PG State Lead Remediation Section

MC 136 Texas Commission on Environmental Quality

P O Box 13087

Austin Texas 78711 3087 Facsimile 512 239 2303 Email cboucher tceq state tx us

Correspondence should be sent to my attention using mail code MC 136 at the address listed above and

must include the following assigned reference number specified in this letter SUP0670016 If you

have any questions please do not hesitate to contact me by telephone at 512 239 2501 or email at

cboucher tceq state txus

Carol Boucher PG Project Manager State Lead Section Remediation Division Texas Commission on Environmental Quality

Enclosure

VODA_AR_00033058 Buddy Garcia Chairman

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Protecting Texas by Reducing and Preventing Pollution

BAXTER OIL SERVICE LTD MR SAM BAXTER PRESIDENT REGISTERED AGENT 5070 IRVING ST

BEAUMONT TX 77705 5231

Re Voda Petroleum Inc Proposed State Superfund Site Clarksville City Gregg County Texas Confirmation of Sixty 60 Day Good Faith Offer Period to Conduct Remedial Design Remedial Action RD RA

On October 23 2008 the Texas Commission on Environmental Quality TCEQ conducted a public

meeting to present the proposed remedial actions for the Voda Petroleum Inc Proposed State Superfund

Site Site A TCEQ letter dated September 12 2008 was sent to notify all identified potentially

responsible parties PRPs for the Site about a public meeting to provide notice of the date of the statuary

Good Faith Offer period and to provide a copy of the Proposed Remedial Action Document PRAD which described the proposed remedial alternatives available for the site

The public comment period for the proposed remedial action ended on October 23 2008 The TCEQ has

reviewed and considered all public comments a summary of which is enclosed and determined that no modification to the proposed remedial alternatives is needed Accordingly the TCEQ has selected

excavation with offsite disposal for the contaminated soil and enhanced bioremediation using reactive biobarriers for the contaminated groundwater as the final remedial actions for the Site

This letter serves to confirm the dates for the Good Faith Offer period as established in the TCEQ's September 12 2008 letter As described in that letter any Good Faith Offer must be received in writing by the TCEQ's Project Manager no later than 5 00p m on December 22 2008 However a request to

extend the Good Faith Offer period has been received and granted by the TCEQ Therefore any Good Faith Offer must be received in writing by the TCEQ's Project Manager no later than 5 00 pm on February 20 2009

According to Section 361.187 of the Texas Health and Safety Code Code PRPs have sixty 60 days

following the public meeting on the propos d remedy to respond in writing to the TCEQ with a Good Faith Offer to fully fund or conduct the proposed remedial actions at the Site A Good Faith Offer is

defined at Section 335.342 5 of 30 Texas Administrative Code If a Good Faith Offer is made by some or all of the potentially responsible parties before the extended deadline of February 20 2009 those

parties have up to an additional sixty 60 days to negotiate an Agreed Administrative Order pursuant to

Section 361.188 of the Code to fully fund perform the selected remedial actions As part of the Agreed

Administrative Order the potentially responsible parties must also reimburse the TCEQ's past

PO Box I 3087 • Austin Texas 787 I I 3087 • 512 239 1000 • Internet address www tceq state tx us p1 in led on rer ydcd paper

VODA_AR_00033059 BAXTER OIL SERVICE LTD Page 2

If a Good Faith Offer is not received within the specified time period the TCEQ may complete the

remedial actions utilizing state funds and pursue cost recovery actions against responsible parties to

recover all response costs pursuant to Section 361.197 for the Code

The TCEQ has prepared an updated PRP contact information spreadsheet If you would like a copy of this spreadsheet please contact the TCEQ Project Manager and a copy will be sent to you via regular

mail email or facsimile Please be sure to include a current mailing address email address or facsimile

telephone number with your request

As the TCEQ Project Manager for the Site my contact information is

PO Box 13087 Austin Texas 78711 3087 Facsimile 512 239 2303 Email cboucher tceg state txus

Correspondence should be sent to my attention using mail code MC 136 at the address listed above and

must include the following assigned reference number specified in this letter SUP0670016 If you

have any questions please do not hesitate to contact me by telephone at 512 239 2501 or email at

cboucher tceg state txus

Carol Boucher PG Project Manager State Lead Section Remediation Division Texas Commission on Environmental Quality

VODA_AR_00033060 Buddy Garcia Chairman

Larry R Soward Commissioner Bryan W Shaw Ph D Commissioner Mark R Vickery PG Executive Director

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Protecting Texas by Reducing and Preventing Pollution

BAXTER OIL SERVICE LTD MR SAM BAXTER PRESIDENT REGISTERED AGENT RR 8 BOX 50 BEAUMONT TX 77720

Re Voda Petroleum Inc Proposed State Superfund Site Clarksville City Gregg County Texas Confirmation of Sixty 60 Day Good Faith Offer Period to Conduct Remedial Design Remedial Action RD RA

On October 23 2008 the Texas Commission on Environmental Quality TCEQ conducted a public

meeting to present the proposed remedial actions for the Voda Petroleum Inc Proposed State Superfund Site Site A TCEQ letter dated September 12 2008 was sent to notify all identified potentially

responsible parties PRPs for the Site about a public meeting to provide notice of the date of the statuary

Good Faith Offer period and to provide a copy of the Proposed Remedial Action Document PRAD which described the proposed remedial alternatives available for the site

The public comment period for the proposed remedial action ended on October 23 2008 The TCEQ has

reviewed and considered all public comments a summary of which is enclosed and determined that no modification to the proposed remedial alternatives is needed Accordingly the TCEQ has selected

excavation with offsite disposal for the contaminated soil and enhanced bioremediation using reactive

biobarriers for the contaminated groundwater as the final remedial actions for the Site

This letter serves to confirm the dates for the Good Faith Offer period as established in the TCEQ's September 12 2008 letter As described in that letter any Good Faith Offer must be received in writing by the TCEQ's Project Manager no later than 5 00p m on December 22 2008 However a request to extend the Good Faith Offer period has been received and granted by the TCEQ Therefore any Good Faith Offer must be received in writing by the TCEQ's Project Manager no later than 5 00 p m on

February 20 2009

According to Section 361.187 of the Texas Health and Safety Code Code PRPs have sixty 60 days

following the public meeting on the proposed remedy to respond in writing to the TCEQ with a Good

Faith Offer to fully fund or conduct the proposed remedial actions at the Site A Good Faith Offer is

defined at Section 335.342 5 of 30 Texas Administrative Code If a Good Faith Offer is made by some or all of the potentially responsible parties before the extended deadline of February 20 2009 those

parties have up to an additional sixty 60 days to negotiate an Agreed Administrative Order pursuant to

Section 361.188 of the Code to fully fund perform the selected remedial actions As part of the Agreed

Administrative Order the potentially responsible parties must also reimburse the TCEQ's past

P O Box 13087 • Austin Texas 78711 3087 • 512 239 1000 • Internet address www tceq state txus prinlcd on rcL ycled rmpcr

VODA_AR_00033061 BAXTER OIL SERVICE LTD Page 2

If a Good Faith Offer is not received within the specified time period the TCEQ may complete the

remedial actions utilizing state funds and pursue cost recovery actions against responsible parties to

recover all response costs pursuant to Section 361.197 for the Code

The TCEQ has prepared an updated PRP contact information spreadsheet If you would like a copy of this spreadsheet please contact the TCEQ Project Manager and a copy will be sent to you via regular

mail email or facsimile Please be sure to include a current mailing address email address or facsimile telephone number with your request

As the TCEQ Project Manager for the Site my contact information is

Remediation Division MC 136 Texas Commission on Environmental Quality

PO Box 13087 Austin Texas 78711 3087 Facsimile 512 239 2303 Email cboucher tceq state txus

Correspondence should be sent to my attention using mail code MC 136 at the address listed above and

must include the following assigned reference number specified in this letter SUP067001 If you

have any questions please do not hesitate to contact me by telephone at 512 239 2501 or email at cboucher tceq state tx us

ys L Carol Boucher P G Project Manager State Lead Section Remediation Division Texas Commission on Environmental Quality

VODA_AR_00033062 Buddy Garcia Chairman

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Protecting Texas by Reducing and Preventing Pollution

BAXTER OIL SERVICE LTD MR SAM BAXTER PRESIDENT REGISTERED AGENT 4828 N SHEPPARD HOUSTON TX 77018 2216

Re Voda Petroleum Inc Proposed State Superfund Site Clarksville City Gregg County Texas Confirmation of Sixty 60 Day Good Faith Offer Period to Conduct Remedial Design Remedial Action RDIRA

On October 23 2008 the Texas Commission on Environmental Quality TCEQ conducted a public

meeting to present the proposed remedial actions for the Voda Petroleum Inc Proposed State Superfund

Site Site A TCEQ Jetter dated September 12 2008 was sent to notify all identified potentially

responsible parties PRPs for the Site about a public meeting to provide notice of the date of the statuary

Good Faith Offer period and to provide a copy of the Proposed Remedial Action Document PRAD which described the proposed remedial alternatives available for the site

The public comment period for the proposed remedial action ended on October 23 2008 The TCEQ has reviewed and considered all public comments a summary of which is enclosed and determined that no

modification to the proposed remedial alternatives is needed Accordingly the TCEQ has selected

excavation with offsite disposal for the contaminated soil and enhanced bioremediation using reactive

biobarriers for the contaminated groundwater as the final remedial actions for the Site

This Jetter serves to confirm the dates for the Good Faith Offer period as established in the TCEQ's September 12 2008 letter As described in that letter any Good Faith Offer must be received in writing by the TCEQ's Project Manager no later than 5 00p m on December 22 2008 However a request to

extend the Good Faith Offer period has been received and granted by the TCEQ Therefore any Good Faith Offer must be received in writing by the TCEQ's Project Manager no later than 5 00 p m on

According to Section 361.187 of the Texas Health and Safety Code Code PRPs have sixty 60 days

following the public meeting on the proposed remedy to respond in writing to the TCEQ with a Good Faith Offer to fully fund or conduct the proposed remedial actions at the Site A Good Faith Offer is

defined at Section 335.342 5 of 30 Texas Administrative Code If a Good Faith Offer is made by some or all of the potentially responsible parties before the extended deadline of February 20 2009 those

parties have up to an additional sixty 60 days to negotiate an Agreed Administrative Order pursuant to

Section 361.1 88 of the Code to fully fund perform the selected remedial actions As part of the Agreed

Administrative Order the potentially responsible parties must also reimburse the TCEQ's past

PO Box I 3087 • Austin Texas 7871 I 3087 • 512 239 1000 • Internet address www tceq state tx us prinlcd on nxydcd parer

VODA_AR_00033063 BAXTER OIL SERVICE LTD Page 2 December 12 2008

If a Good Faith Offer is not received within the specified time period the TCEQ may complete the

remedial actions utilizing state funds and pursue cost recovery actions against responsible parties to

recover all response costs pursuant to Section 361.197 for the Code

The TCEQ has prepared an updated PRP contact information spreadsheet If you would like a copy of

this spreadsheet please contact the TCEQ Project Manager and a copy will be sent to you via regular

mail email or facsimile Please be sure to include a current mailing address email address or facsimile

As the TCEQ Project Manager for the Site my contact information is

MC 136 Texas Commission on Environmental Quality PO Box 13087 Austin Texas 78711 3087 Facsimile 512 239 2303 Email cboucher tceq state tx us

Correspondence should be sent to my attention using mail code MC 136 at the address listed above and

must include the following assigned reference number specified in this letter SUP0670016 If you

have any questions please do not hesitate to contact me by telephone at 512 239 2501 or email at

Carol Boucher P G Project Manager State Lead Section Remediation Division

Texas Commission on Environmental Quality

VODA_AR_00033064