The Issue: Hutto Landfill

One of the County Attorney's jobs is to conduct the business between the county and its contractors, including obtaining landfill licenses.

• History
• Contract

History

In 2003, in apparent violation of Texas law requiring an open bidding process, Williamson County Commissioners entered into a contract with Waste Management (WMTX) to operate the Hutto landfill. Whether or not the County Attorney failed to advise county commissioners of this violation at the time is unknown.

This required an application by Williamson County for the issuance of a landfill operator's license by the Texas Commission on Environmental Quality (TCEQ). Instead of the County Attorney submitting the application, it was somehow decided to let the fox guard the henhouse. "Williamson County employees did not take part in preparing the Application. Instead, WMTX "submitted" the Application on behalf of Williamson County." SOAH, p. 15. (emphasis added). Coincidentally, WMTX submitted the application to accidentally identify WMTX as the "site operator," rather than merely the "operator."

This was extremely significant.

"[A]n "Operator" is an entity that "operates" a facility on behalf of an "Owner" pursuant to a contract, thus WMTX is the "Operator." This definition of "Operator" is essentially the same as what is generally referred to as a "contract operator" of a landfill. The definition of "Site Operator," however, applies to Williamson County, because the County is the "holder of" the permit for the Facility..." SOAH, p. 13. "[W]hile Williamson County may contract with an entity to "operate" the Landfill, it still retains ultimate responsibility for operation of the Facility as "Site Operator." Id. "Williamson County is both the owner and the Site Operator of the Landfill, retaining ultimate responsibility for operations even though it contracted with WMTX to conduct these duties." Id.

In other words, were WMTX to be categorized as the "site operator," it could have potentially argued that Williamson County had given up ownership and control, and WMTX had become the actual owners of the landfill. This could have been a devastating loss to taxpayers.

According to the judges, what should have been a "simple and common relationship between owners and operators as seen in various applications and enforcement proceedings before the Commission" turned instead into a confusing mess. SOAH, p. 11. While "Williamson County made numerous efforts to clarify the identity of the Applicant and WMTX's role," this "only resulted in additional grounds for confusion." SOAH, p. 10.

In its initial 2003 application, the county requested a land use compatibility determination on the proposed permit. Yet after a year's failure to do so, the county then decided to forgo this, and just submit the rest of the application. SOAH, p. 5. This was simply one of many delays, mistakes, and confusion noted by the judges.

Two more years passed. Then, because of the confusion created by WMTX's handling of the application, Williamson County was ordered to file a clarification establishing the actual identities of both the "Applicant" (Williamson County) and of the role of WMTX. SOAH, p. 6. The source for this particular confusion? On the original draft of the permit, Williamson County was identified by WMTX as the "Permittee and Site Owner" and WMTX as the "Site Operator." The judicial panel ruled that it is inaccurate to refer to WMTX as the "Site Operator." SOAH, p. 9.

When the Draft Permit was first forwarded to the County, it rightfully caught the error and requested the correction listing Williamson County as the "owner and permittee" and WMTX as the simply the "operator." Unfortunately, the Draft Permit was corrected by using the language on the original permit, which had also incorrectly listed WMTX as "Site Operator" instead of "Operator," and which the county had never seen fit to correct. When the Draft Permit was returned the second time, nobody noticed that it was still in error, and the County accepted it as accurate. SOAH, p. 16.

Concerned and fed up with the potential abuses, quality of life, and costs to taxpayers these continual mistakes were creating, local citizens and property owners (the "Protestants") fought to make sure the license was either properly issued or denied.

After years of litigation, more confusion, and delay, the matter was finally brought before the TCEQ judges. After addressing the numerous problems and mistakes, they have finally ruled to grant the license, but only after certain significant changes are made.

Administrative Judge's Decision:

The judges ("administrative law judges" or "ALJ's") rendered a thorough, well considered decision that ultimately reached what I believe to be the correct conclusion in granting the permit. In a February 15, 2008 press release to the Austin American Statesman, Jana Duty heralded the ruling as a victory against the citizens of Hutto. But the actual decision was for reasons slightly different than Ms. Duty would lead us believe. While ultimately forgiving of the county attorney's confusion and the numerous mistakes, it is evident that the judges were somewhat critical of the county's initial handling of the application.

It seems that the permit may very well have been despite, rather than because of the County Attorney's actions, that the judges advised granting the permit.

Ms. Duty ignored the factual conclusions of the judges in reaching their decision, and somewhat condescendingly concludes that the judges "tossed" the concerned citizens of Hutto a few "bones" for their participation.

One of these "bones" the judges tossed to the dogs is the conclusion that the people of Hutto's intervention in the matter was indeed legitimate. The judges thereby denied Ms. Duty's request that these citizens pay relevant hearing costs. Instead, because of the multitude of problems arising out of the incorrectly filed permit application, Williamson County taxpayers will pay $24,774.00 in hearing expenses.

Furthermore, Ms. Duty's elation that "the ALJ's saw through the misinformation and confusion caused by the Protestants (Hutto citizens)," is disingenuous at best. Contrary to her statement that the judges "saw through the misinformation and confusion caused by" the people of Hutto, the ALJ's actually commended these citizens for shedding light on the relevant problems created by Ms. Duty's office.

Said the judges: "If the Protestants concerns were frivolous or if their examination of witnesses was unduly repetitive or irrelevant, fairness would require that they bear all or at least a large share of the expenses. That is not the case in this proceeding, however. Although the ALJ's (Administrative Law Judges) recommended approval of the Application with some modifications, the issues raised by the Protestants were reasonable and well presented." (emphasis added). SOAH, p. 90.

"In conclusion, although the Protestants raised reasonable concerns regarding the Application, the ALJs recommend that the permit amendment be granted. SOAH, p. 91.

Ms. Duty's obvious disdain for the involvement and legitimate concerns of ordinary Williamson County citizens directly affected by the landfill is perplexing. After all, these are the very people who put her in office, and whom she purports to represent. When an elected official belittles and refuses to address the legitimate concerns of her constituency, particularly problems that her own office has contributed to, it creates a severe lack of faith and confidence. It certainly leads one to question where her true allegiances lie, and that's a real problem.

You are invited to confirm the following through the public records readily available on line at http://www.soah.state.tx.us/pfdsearch/pfds/582/06/582-06-3321-pfd1.pdf.

Landfill Contract

The Texas County Purchasing Act is clear:

County contracts are to be conducted through an open bidding process. This means that various contractors submit bids for county contracts, and the lowest reasonable bidder is granted the contract. The purpose is to provide for open government, and at the least expense for the taxpayer.

Because the County Commissioner's 2003 landfill contract with Waste Management, Inc. (WMI) was performed under a closed bid, with WMI the only bidder, the Act was violated, and the contract should be void as a matter of law.

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