1 Tceq Docket No. 2019-0202-Msw in the Matter
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TCEQ DOCKET NO. 2019-0202-MSW IN THE MATTER OF THE § BEFORE THE TEXAS APPLICATION OF § MEDCARE § COMMISSION ON ENVIRONMENTAL § SOLUTIONS INC. FOR § ENVIRONMENTAL MUNICIPAL SOLID WASTE REGISTRATION NO. 40294 QUALITY MOVANTS REPLY TO APPLICANT’S, ED’S, AND OPIC’S RESPONSES TO MOTIONS TO OVERTURN TO THE HONORABLE MEMBERS OF THE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY El Paso County Commissioner Vincent M. Perez joined by State Senator Jose Rodriguez, State Representatives Joe Moody, Mary Gonzalez, Cesar Blanco, Evelina Ortega, and Art Fierro, El Paso City Councilwomen Claudia Ordaz Perez, and Ysleta Independent School District Trustee Kathryn Rose Lucero file this reply to the responses to the motions to overturn filed by MedCare Environmental Solutions, Inc. (“MedCare” or “Applicant”), The Executive Director of the Texas Commission on Environmental Quality (“ED” or “TCEQ”), and the Office of Public Interest Counsel (“OPIC”). The responses by the above were filed August 2, 2019, August 6, 2019. Reply briefs in this matter are due Friday, August 16, 2019. This brief is timely filed. As requested in the motion to overturn, we respectfully urge the Commission to accept the recommendation of the ED and OPIC and grant the motions to overturn. I. Introduction On April 24, 2019, the Texas Commission on Environmental Quality (Commission) voted to overturn the Executive Director's issuance of Registration No. 40294 to MedCare and remand the application to the ED for reevaluation of land use compatibility. On June 21, 2019, notice was issued that the Executive Director had completed the requested land use compatibility analysis and once again approved the registration effective June 18, 2019. Motions to overturn the reissued registration No. 40294 were timely filed by 1) the El Paso Legislative Delegation, including State Representatives Cesar Blanco, Joe Moody, Mary Gonzalez, Evelina Ortega, and Art Fierro, and State Senator Jose Rodriguez, 2) State Senator Jose Rodriguez individually; 3) El Paso City 1 Councilwomen Claudia Ordaz Perez; 4) El Paso County Commissioner Vincent Perez and Senior Policy Advisor Joaquin Rodriguez; 5) Trustee Kathryn Rose Lucero and President Cruz Ochoa, Jr., on behalf of the Ysleta ISD Board of Trustees; 6) Governor Michael Silvas, on behalf of the Ysleta del Sur Pueblo; and 7) 187 residents from the surrounding area. Responses to these motions to overturn were subsequently filed by the ED, OPIC and MedCare. The ED and OPIC have recommended that the Commission grant the motions to overturn and deny the application based in part on detailed evidence provided by the movants, admission of errors by the applicant, and false information contained in MedCare’s application. MedCare acknowledges the deficiencies in their application as brought to light by the movants and admits to having provided incorrect land use data to TCEQ but greatly minimizes these errors in an effort to secure their registration. II. Response to MedCare Movants have shown that MedCare grossly underrepresented the number of residences within a one- mile radius of the proposed facility. In response to the motions to overturn MedCare asserts that “Despite the error, the requested facility is still compatible with all land uses in the vicinity.” and goes on to state that MedCare and their representative “stands by its analysis regarding land use compatibility.”1 MedCare then continues to assert its land use compatibility argument by providing an article entitled “Medical Waste Not as Dangerous as its Stigma Suggests”2 The article focuses on safety concerns surrounding medical waste. The article does not pertain to the processing of medical waste or the facilities required for treatment. Most notably, the article makes no mention of land use compatibility of industrial waste processing facilities in residential areas; and in fact, makes no mention whatsoever of the concepts of land use compatibility.3 For Medcare to provide such grossly inaccurate land use data and continue to suggest that “the requested facility is still compatible with all land uses in the vicinity” demonstrates a complete disregard for rules established to provide the ED “data of sufficient completeness, accuracy, and clarity to provide assurance that operation of the site will pose no endangerment of the human health and welfare or the environment.” 1 “MedCare Environmental Solutions, Inc. Response to Motions to Overturn” Page 3 of 11 2 “MedCare Environmental Solutions, Inc. Response to Motions to Overturn” Exhibit No. 4 3 30 TAC § 326.61(e). 2 If the number of residences has no bearing on land use compatibility, as implied by the applicant, why did the ED rely on the number of residences in his reevaluation of land use compatibility?4 We concur with the ED’s recommendation to grant the motions to overturn based in part on the false information included in the application and MedCare’s failure to rectify its errors at any point during the application process. MedCare attempts to further discount the medical waste rules in regards to surrounding land uses. MedCare now provides as an exhibit to their response a zoning map from The City of El Paso. The medical waste rules require an applicant to submit separately a “Land-use map” and “Published zoning map.”5 The medical waste rules require separate submittals because the concepts of zoning and land use, while related, are fundamentally unique. MedCare continues to conflate the two concepts and attempts to dismiss the argument solely on the basis that they have done so in the past. The fact of the matter is, as Movants have shown, the land use map provided by MedCare6 misrepresents both the city’s zoning map and the actual land uses surrounding the area. This misrepresentation alone should be sufficient grounds to grant the motions to overturn and deny the registration. Further, MedCare states “The fact of the matter is that regardless of the surrounding land uses the primary goal of the Commission rules is to ensure that the public health is protected.”7 MedCare is correct in their conclusion that the primary goal is the protection of public health; however, MedCare fails to acknowledge that land use compatibility is a vital tool in pursuing that primary goal. 30 TAC §361.71 (a)(5) requires that the Commission and the ED consider land use compatibility in order to protect the public health. We urge the Commission to reject MedCare’s attempt to trivialize the importance of surrounding land uses and the number of residences in proximity to the proposed facility and grant the motions to overturn, as recommended by the ED and OPIC. III. Response to ED & OPIC Movants agree fully and support the conclusions of the Executive Director and the Office of Public Interest Council. 4 Correspondence from TCEQ to All Concerned Parties “Re: MedCare Environmental Solutions, Inc. (MedCare) – El Paso County” June 21, 2019 5 §326.71. Registration Application Contents. Subsection (a) Maps and Drawings 6 See MedCare Application, Figure 1-6 7 “MedCare Environmental Solutions, Inc. Response to Motions to Overturn” Page 5 of 11 3 IV. Conclusion Only after the movants provided detailed analysis regarding land use did MedCare acknowledge its application to TCEQ grossly understated the actual number of residences within a one-mile radius of the proposed facility; however, their attempt to dismiss the mistake as inconsequential and failure to acknowledge further misrepresentations and omissions in their application should compel the Commission to grant the motions to overturn, as recommended by the ED and OPIC. We strongly stand by our conclusion that the proposed facility is wholly incompatible with the surrounding residential community. The applicant has provided false, misleading information regarding land use compatibility as acknowledged by the ED, OPIC, and MedCare. The applicant has not met the application requirements of the medical waste rules and does not meet the requirements for registration. We respectfully request that the Commission grant this Motion to Overturn and deny the application. Respectfully Submitted, Vincent M. Perez County Commissioner José Rodriguez El Paso County - Precinct Three Texas State Senator Senate District 29 Joe Moody Mary Gonzalez Texas State Representative Texas State Representative House District 78 House District 75 César J. Blanco Evelina “Lina” Ortega Texas State Representative Texas State Representative House District 76 House District 77 4 Art Fierro Claudia Ordaz Perez Texas State Representative Councilwoman, District 6 House District 79 City of El Paso Kathryn Rose Lucero Ysleta Independent School District Trustee and Board Secretary 5 MAILING LIST for MedCare Environmental Solutions, Inc. Registration N0. 40294 FOR THE APPLICANT: FOR PUBLIC INTEREST COUNSEL Nord S. Sorensen, President Dominique McLeggan-Brown, Attorney MedCare Environmental Solutions, Inc. Texas Commission on Environmental P.O. Box 21106 Quality Amarillo, Texas 79114 Public Interest Counsel MC 103 P.O. Box 13087 Clint Green Austin, Texas 78711-3087 OJD Engineering, LP 2420 Lakeview Drive FOR THE CHIEF CLERK Amarillo, Texas 79109 Bridget C. Bohac, Chief Clerk Texas Commission on Environmental FOR THE EXECUTIVE DIRECTOR Quality Ryan Vise, Director Office of Chief Clerk MC 105 Texas Commission on Environmental P.O. Box 13087 Quality Austin, Texas 78711-3087 Environmental Assistance Division Public Education Program MC 108 P.O. Box 13087 Austin, Texas 78711-3087 Kayla Murray, Staff Attorney Texas Commission on Environmental Quality Environmental Law Division MC 173 P.O. Box 13087 Austin, Texas 78711-3087 Daniela Ortiz, Technical Staff Texas Commission on Environmental Quality Waste Permits Division MC 124 P.O. Box 13087 Austin, Texas 78711-3087 6 .