McDaniel v. TEX. NAT. RESOURCE CONSERV. COM'N

982 S.W.2d 650
CourtCourt of Appeals of Texas
DecidedDecember 17, 1998
Docket03-98-00057-CV
StatusPublished
Cited by13 cases

This text of 982 S.W.2d 650 (McDaniel v. TEX. NAT. RESOURCE CONSERV. COM'N) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McDaniel v. TEX. NAT. RESOURCE CONSERV. COM'N, 982 S.W.2d 650 (Tex. Ct. App. 1998).

Opinion

982 S.W.2d 650 (1998)

Alton McDANIEL, Appellant,
v.
TEXAS NATURAL RESOURCE CONSERVATION COMMISSION, Appellee.

No. 03-98-00057-CV.

Court of Appeals of Texas, Austin.

December 17, 1998.

*651 David Frederick, Amy Johnson, Henry, Lowerre, Johnson, Hess & Frederick, Austin, for Appellant.

Dan Morales, Atty. Gen., Nancy E. Olinger, Asst. Atty. Gen., Austin, for Appellee.

Before Justices JONES, B.A. SMITH and YEAKEL.

LEE YEAKEL, Justice.

Appellant Alton McDaniel ("McDaniel") appeals the trial court's decision to grant summary judgment and render a final judgment in favor of appellee Texas Natural Resource Conservation Commission ("TNRCC"). McDaniel contends that the TNRCC does not have authority to allow solid waste disposal by registration, and, even if such authority exists, the notice given by the TNRCC did not comply with TNRCC rules. We will affirm the trial court's judgment.

BACKGROUND

Cary Juby ("Juby") applied to the TNRCC to register a site in Burnet County upon which he intended to beneficially apply sewage sludge. Juby acknowledged in his application that he did business as "Cap. Tex. Waste Service." The TNRCC sent notice of the application to the county judge of Burnet County and to the landowners adjacent to the proposed disposal site. This notice did not specify that Juby was associated with Cap. Tex. Waste Services. The TNRCC later approved the application and issued a written sludge registration. No contested case hearing was held prior to the issuance of this registration.

McDaniel resides on land adjacent to the proposed sludge disposal site and timely filed a motion for reconsideration of the registration, which was overruled by operation of law. McDaniel then filed suit in district court pursuant to section 5.351(a) of the Texas Water Code, seeking to set aside the TNRCC's decision to issue the registration.[1]See Tex. Water Code Ann. § 5.351 (West 1988). At trial, McDaniel and the TNRCC filed cross-motions for summary judgment. The trial court denied McDaniel's motion and granted the TNRCC's, rendering a final judgment in favor of the TNRCC.

DISCUSSION

When both parties move for summary judgment and the trial court grants one motion and denies the other, the reviewing court should review the summary-judgment evidence presented by both sides and determine all questions presented. See Commissioners Court of Titus County v. Agan, 940 S.W.2d 77, 81 (Tex.1997); Jones v. Strauss, 745 S.W.2d 898, 900 (Tex.1988). The reviewing court should then render such judgment as the trial court should have rendered. See Agan, 940 S.W.2d at 81.

Registration versus Permitting

McDaniel questions whether the Solid Waste Disposal Act (the "Act"), Tex. Health & Safety Code Ann. §§ 361.001-.510 (West 1992 & Supp.1999), gives the TNRCC authority to allow sewage sludge disposal by registration. Stated another way, the issue is whether the TNRCC must go through the general permitting process before allowing the disposal of sewage sludge.

Agencies may only exercise those powers that are specifically given them by statute. See Sexton v. Mount Olivet Cemetery Ass'n, 720 S.W.2d 129, 137 (Tex.App.-Austin 1986, writ ref'd n.r.e.). However, agencies also have implied powers to do that which is necessary to carry out the specific powers delegated, for the legislature intended a workable and effective exercise of the *652 powers expressly and specifically granted the agency. See id. at 137-39 (full extent of power specifically granted agency must be ascertained with due regard for rule that legislature intends agency should have, by implication, such authority as may be necessary to carry out specific powers delegated). In order to ascertain the legislative intent with regard to the Act and determine the authority it grants to the TNRCC, we look to the statute as a whole. See Citizens Bank of Bryan v. First State Bank, 580 S.W.2d 344, 348 (Tex.1979) ("The cardinal rule in statutory interpretation and construction is to seek out legislative intent from a general view of the enactment as a whole").

The sewage sludge at issue in this case is municipal solid waste. See Tex. Health & Safety Code Ann. § 361.003(20) (West Supp. 1999) (defining municipal solid waste as "solid waste resulting from or incidental to municipal, community, commercial, institutional, or recreational activities").[2] The Act governs the management and control of solid waste materials in this state, including sewage sludge. See North Alamo Water Supply Corp. v. Texas Dep't of Health, 839 S.W.2d 448, 449 (Tex.App.-Austin 1992, writ denied).

Throughout the Act, the TNRCC is given the authority to administer the act using different levels of regulation, including both permitting and registration.[3] With the exception of hazardous municipal waste (which the sewage sludge at issue here is not),[4] the TNRCC is given broad jurisdiction to control all aspects of the management of municipal solid waste consistent with its powers and duties under the Act:

(a) The [TNRCC] is responsible under this section for the management of municipal solid waste ... and shall coordinate municipal solid waste activities....
(b) The [TNRCC] shall accomplish the purposes of this chapter by controlling all aspects of the management of municipal solid waste ... by all practical and economically feasible methods consistent with its powers and duties under this chapter and other law.
(c) The [TNRCC] has the powers and duties specifically prescribed by this chapter relating to municipal solid waste management ... and all other powers necessary or convenient to carry out those responsibilities under this chapter.

Tex. Health & Safety Code Ann. § 361.011 (West Supp.1999) (emphasis added). The Act also specifically gives the TNRCC authority to issue permits for municipal solid waste disposal in its general permitting section: "Except as provided by 361.090 with regard to certain industrial solid waste, the commission may require and issue permits authorizing and governing the construction, operation, and maintenance of solid waste facilities used to store, process, or dispose of solid waste." Id. § 361.061 (emphasis added).

McDaniel argues that the general permitting section establishes that the TNRCC can either establish a permitting process or implement no regulation at all for sewage sludge disposal. We do not agree that the legislature intended an "all or nothing" approach to the disposal of solid waste. The policy of the Act as a whole is to "safeguard the health, welfare, and physical property of the people and to protect the environment by controlling the management of solid waste." Tex. Health & Safety Code Ann.

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