Tex. Comm'n on Envtl. Quality v. Union Pac. R.R. Co.

Texas Commission on Environmental Quality, Appellant v. Union Pacific Railroad Company; Jesse L. Myrow; and Wesley R. Myrow, Appellees

No. 03-21-00082-CV

Court of Appeals of Texas, Third District, Austin

April 7, 2022

FROM THE 250TH DISTRICT COURT OF TRAVIS COUNTY NO D-1-GN-17-003918, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING

Before Chief Justice Byrne, Justices Triana and Kelly

MEMORANDUM OPINION

Gisela D. Triana, Justice

The Texas Commission on Environmental Quality (TCEQ) filed this interlocutory appeal from an order denying its "Traditional Motion for Partial Summary Judgment on Unreviewable Agency Acts and Response Costs" in its cost-recovery suit under the Texas Solid Waste Disposal Act against Union Pacific Railroad Company, Jesse L. Myrow, and Wesley R. Myrow. In the suit, TCEQ seeks to recoup $1, 697 548.73 in public funds that it incurred to remediate environmental contamination at a site in Nacogdoches County.^[1] See Tex. Health & Safety Code § 361.197. TCEQ's motion for partial summary judgment raised jurisdictional challenges to certain defenses pleaded by Union Pacific and the Myrows questioning the reasonableness, propriety, and necessity of TCEQ's acts, including proposing the site for listing on the state Superfund registry and cleaning up the site. TCEQ requested that the district court "dismiss" the paragraphs containing those defenses from the parties' answers. By denying TCEQ's motion for partial summary judgment, the district court declined to do so.

In its only appellate issue, TCEQ contends that those paragraphs should have been dismissed from the parties' answers because the district court lacks jurisdiction to review the agency's decisions in proposing a site for listing on the state Superfund registry and conducting a removal of contaminated soil. TCEQ requests that we reverse the district court's order and render judgment "dismissing the affirmative defenses" as to the TCEQ's decisions. Union Pacific and the Myrows contend that this is an unauthorized interlocutory appeal and request its dismissal for want of jurisdiction. For the following reasons, we agree that we lack jurisdiction over this interlocutory appeal and will dismiss it.

BACKGROUND^[2]

This case arises out of the TCEQ's 2011 cleanup of hazardous waste at Woodward Industries, Inc., a former state Superfund site that had previously functioned as wood-treatment facility in Nacogdoches County. After discovering that the soil at the site was contaminated with pentachlorophenol TCEQ proposed the site for listing on the registry of state Superfund sites. See Tex. Comm. on Env't Quality, Notice of Meeting on April 5, 2007, in Nacogdoches, Tex. Concerning the Woodward Indus., Inc. Site, 32 Tex. Reg. 1139, 1139 -40 (2007).

TCEQ contends that on February 27, 2007, it notified the Myrows, as "potentially responsible parties, "^[3] of the site's contamination and its proposed listing on the state Superfund registry and that TCEQ provided the Myrows with an opportunity to fund or conduct a remedial investigation. Receiving no offer to fund or conduct a remedial investigation, TCEQ conducted the study itself in 2009. See Tex. Health & Safety Code § 361.185(b).

TCEQ contends that on June 2, 2011, after conducting the remedial investigation, it notified the potentially responsible parties identified by that time, the Myrows and Union Pacific, ^[4] of the need to conduct a removal action and provided them with an opportunity to fund or conduct the removal action. Receiving no offer to fund or conduct the removal action, TCEQ published notice of its intent to clean up the site. See Tex. Comm. on Env't Quality, Notice of Woodward Indus., Inc. Proposed State Superfund Site, 36 Tex. Reg. 3639, 3639 (2011). TCEQ notes that it is authorized to conduct a removal action without a formal administrative order when the site to be cleaned up is eligible for listing on the state Superfund registry and either:

(1) immediate action is appropriate to protect human health or the environment and there is a substantial likelihood that the cleanup or removal will prevent the site from needing to be listed, or (2) a cleanup or removal can be completed without extensive investigation and planning and will achieve a significant cost reduction for the site. See Tex. Health & Safety Code § 361.133(g). TCEQ subsequently removed hazardous waste from the site in 2011.

TCEQ files its cost-recovery suit and Union Pacific and the Myrows file answers

In 2017, TCEQ filed a cost-recovery suit against Union Pacific and the Myrows, pleading that it spent $1, 697, 548.73 to clean up the site's hazardous-waste contamination. Union Pacific and the Myrows filed answers raising various defenses, including that TCEQ: (1) was not excused from obtaining a "final agency/administrative order" before beginning the removal action at issue because there was not any "immediate threat (and/or emergency) to life, property, health, safety and/or the environment"; (2) "did not achieve any cost savings and/or cost reduction because of its improper and/or premature actions"; and (3) failed to mitigate its damages. Additionally, Union Pacific and the Myrows denied that TCEQ's "remediation costs/damages are reasonable, appropriate, and/or necessary."

Union Pacific pleaded further that: (1) "TCEQ did not properly conduct the Hazard Ranking System Score" and "improperly scored the Site"; (2) the removal was conducted only after there had been extensive investigation and planning; (3) "TCEQ did not appropriately determine that no funds from potentially responsible parties, the federal government, and/or third parties were available"; and (4) TCEQ "failed to provide proper/adequate notice to Union Pacific, which is a condition precedent to this action and renders the TCEQ's remediation activities unauthorized under the Texas Health and Safety Code and Texas Administrative Code." In this regard, Union Pacific noted that TCEQ "allegedly began investigating the site in 2005, but [it] did not send any notice to Union Pacific until April 2011" and that Union Pacific had inadequate time to investigate TCEQ's claims. Alternatively, Union Pacific pleaded that TCEQ should not be entitled to recovery of any costs or expenses incurred before April 2011.

TCEQ files motion for partial summary judgment challenging paragraphs in answers

In 2020, TCEQ filed a motion for partial summary judgment contending that, through the challenged paragraphs in their answers, Union Pacific and the Myrows seek untimely judicial review of the agency's decisions to propose the site for listing on the state Superfund registry and to conduct a removal action. TCEQ's motion also contended that because Union Pacific and the Myrows did not "engage with the agency during the administrative process" and did not file a timely suit for judicial review under section 361.321 of the Health and Safety Code, any challenges that they could have raised were waived years ago, and the district court lacked jurisdiction to hear such challenges. See Tex. Health & Safety Code § 361.321(a) (providing that "[a] person affected by a ruling, order, decision, or other act of the commission may appeal the action" to Travis County district court).

Union Pacific and the Myrows filed responses to TCEQ's motion. The district court heard the motion for partial summary judgment and denied it. This appeal followed.

DISCUSSION

As a preliminary matter, Union Pacific and the Myrows contend that TCEQ's interlocutory appeal is outside this Court's appellate jurisdiction.^[5] They note that although TCEQ characterizes its motion for partial summary judgment as a "plea to the jurisdiction" appealable under subsection 51.014(a)(8) of the Texas Civil Practice and Remedies Code, TCEQ sought a ruling on discrete legal issues related only to their pleaded defenses, not dismissal of any cause of action for lack of subject-matter jurisdiction. Thus, Union Pacific and the Myrows contend that because the TCEQ's motion for partial summary judgment did not function as a plea to the jurisdiction, the order denying the TCEQ's motion is not reviewable under subsection 51.014(a)(8), and this interlocutory appeal is unauthorized.

Whether we have jurisdiction to determine the merits of an appeal is a question of law that we review de novo. In re Guardianship of Jones, 629 S.W.3d 921, 924 (Tex. 2021) (citing Bonsmara Nat. Beef Co., LLC v. Hart of Tex. Cattle Feeders, LLC, 603 S.W.3d 385, 390 (Tex. 2020)). "As a general rule, appellate courts may consider appeals from interlocutory orders only when such power is conferred expressly by statute." Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 387-88 (Tex. 2014). Statutes authorizing interlocutory appeals are narrow exceptions to the general rule that appellate courts have jurisdiction over only final judgments. Bonsmara, 603 S.W.3d at 390. Subsection 51.014(a)(8) of the Texas Civil Practice and Remedies Code authorizes an interlocutory appeal from an order that "grants or denies a plea to the jurisdiction by a governmental unit as that term is defined in Section 101.001." Tex. Civ. Prac. & Rem. Code § 51.014(a)(8).

The "plea to the jurisdiction" identified in subsection 51.014(a)(8) "does not refer to a 'particular procedural vehicle,' but rather to the substance of the issue raised." City of Magnolia 4A Econ. Dev. Corp v. Smedley, 533 S.W.3d 297, 299 (Tex. 2017) (quoting Texas Dep't of Crim. Justice v. Simons, 140 S.W.3d 338, 349 (Tex. 2004)). "It is the substance of the argument-that the suit should be dismissed for want of jurisdiction-and not the vehicle used that is determinative." Barnes v. Harris County, No. 14-18-00329-CV, 2019 Tex.App. LEXIS 9363, at *2 (Tex. App.-Houston [14th Dist.] ...