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 The Administrative Law Judges have issued their opinion regarding the Juliff Gardens permit application.  They have recommended that the permit be denied.   The judges’ 71-page opinion is strong and well-reasoned containing 108 Findings of Fact and 18 Findings of Law. 

 
The judges' conclusion:
 
"In conclusion, many of the concerns raised by the Protestants are justified by the evidence and raise serious questions about the operation of the Landfill, particularly in regard to flooding and drainage.  Given the topography of the area, and the relatively low elevation, it is very important for landfill operators to fully and properly conduct flood analyses and address flooding concerns.  In this case, Applicant did not do that.  Moreover, Applicant does not have a sufficient interest in the property as required by 30TAC 330.62(a), and the Landfill also appears prohibited by THSC 361.122.  Finally it appears inconsistent with regional planning goals, and is opposed by the county in which it will be sited, the local council of governments and the local drainage district.  For all of these reasons, the ALJs recommend ther permit be denied." 
 
Deadline for briefs is July 26th.  Possible dates for the judges to present their findings to the TCEQ Commissioners are August 25th, September 15th, September 29th.  The final determination will be made by the Commissioners at that time. 

It is difficult to express the significance of this ruling.  It is a fact that we must wait to see what the Commissioners will do with the judges' opinion, but we can honestly say for the first time in five years that we believe the odds are in our favor.  We will be stunned if the Commissioners reject the judges’ decision that the permit should be denied.
 
Here are a few of the Findings of Law:
 
"Based on Findings of Fact, the proposed Juliff Gardens landfill permit application is prohibited by TH&SC 361.122."  (This refers to the legislation regarding the proximity of landfills to fresh water canals.)
 
"Applicant has not shown that it possesses or has acquired a sufficient interest in or right to the use of the property for which the requested permit is to be issued, as required by 30 TAC 330.62(a)."
 
"Applicant has not shown that it accurately identified whether the Site is located within a 100-year floodplain as required by 30 TAC 300.56 (f)(4)(B)(i)."
 
"The proposed Juliff Gardens landfill permit application violates TWC 26.121 and 30TAC 330.55(b)(1)(a) because; as designed, contaminated groundwater may be discharged from the landfill into waters in the state." 
 
"The application fails to conform to the H-GAC Regional Plan and, therefore, is in violation of THSC 363.066(a) and TAC 330.566(d)."
 
"Applicant has not properly identified drainage patterns at and adjacent to the site, as required by 30TAC 330.56(c)."
 
"By failing to properly identify drainage patterns or to analyze substantively the impact that the proposed landfill would have on the volume of surface water draining off the site, Applicant has failed to comply with 30TAC 330.56(f)(4)(A) and 30TAC 330.55(b)(5)(D), which require demonstration that natural drainage patterns will not be significantly altered by proposed landfill development." 
 
"Based on the foregoing findings of fact and conclusions of law, Applicant failed to demonstrate that construction and operation of the proposed landfill will not result in adverse effects on the health, welfare, environment or physical property of the public and failed to demonstrate that the Application complies with all statutory and regulatory requirements."
 
 
 

Blow struck against landfill

By Michael Wright
The Facts

Published June 29, 2004

Opponents of a proposed landfill near Iowa Colony won an important victory Thursday when two administrative law judges recommended the Texas Commission on Environmental Quality deny the application for the Juliff Gardens landfill.

Plans to build the landfill have been at a standstill for almost five years while Juan and Edward Pupo, who own Sentinel Resources, sought permits from the TCEQ. Residents near the proposed site organized Citizens Against the Dump in an effort to fight the landfill.

They joined with Brazoria County Commissioners, the district attorney’s office and State Rep. Dennis Bonnen, R-Angleton, to oppose the site.

The recommendations from the administrative law judges find the Pupos didn’t properly take drainage issues into consideration and failed to prove the proposed landfill wasn’t in the 100-year flood plain. The judges also found the landfill is inconsistent with growth patterns in the area.

“Isn’t that lovely,” Iowa Colony City Councilwoman Kay Mudd said.

The Pupos could not be reached for comment. Molly Cagle, an attorney with Vinson and Elkins in Austin representing them, said she did not speak for the Pupos.

Frances Underwood, one of the organizers of Citizens Against the Dump, said she was delighted by the findings.

“Without this ruling, our chances would have been slim and none of having this permit defeated,” Underwood said. “We are certainly increasingly optimistic.”

The permit would allow the Pupos to build a 258-acre landfill with a life expectancy of 44 years. The landfill would be 10 to 12 feet deep and 140 feet high and would take construction trash, such as wall board and wood.

In the wake of a contested case hearing at Iowa Colony City Hall in January, the judges found numerous problems in the Pupos’ application, the most important of which were the issue of mineral rights and whether the site is too close to an irrigation canal.

Texas law gives mineral rights precedence over surface rights. Any development of the surface must not interfere with the access of mineral rights owners. Sentinel Resources, the Pupos’ company, owns the surface rights, but not the mineral rights. The Pupos have received waivers from 58 percent of the mineral rights owners, which they argued was enough. The judges disagreed.

“Applicant would essentially have the commission turn a blind eye to the 42 percent mineral interest owners who have not executed a surface waiver or given any consent to applicant’s proposed use of the site,” the judges write.

Texas law, written by former State Sen. J.E. “Buster” Brown, R-Lake Jackson, bans landfills within 100 feet of irrigation canals in coastal counties with a population of more than 225,000, a statute the landfill would violate.

The Pupos argued a waterway owned by the Texas Department of Criminal Justice does not meet the state’s definition of “canal.” The judges disagreed, finding no “meaningful difference between a ‘ditch’ and a ‘canal’ when both are used for irrigation of crops used for human or animal consumption.”

The panel also found the landfill plans did not adequately protect groundwater from possible contamination by materials from the landfill.

The TCEQ will make the final decision on the permit application.

Mudd said she was excited, but she’s waiting for the TCEQ to rule before she breathes easy again.

“Until I hear those commissioners in Austin say that permit is denied, I’m not opening the bottle of champagne,” Mudd said.


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