On Wednesday, July 22, 2015, Pintail Landfill, LLC submitted a Motion for Continuance and Stay with the State Office of Administrative Hearings (SOAH) Court in the Contested Case Hearing (CCH), seeking to delay the CCH indefinitely because their permit application does not meet TCEQ regulations.

The main reason given by Pintail for the admission that their application does not meet regulations is the recent discovery of the rise in the water table during a site visit by Citizens Against the Landfill in Hempstead (CALH) representatives on Friday, July 17. What they are essentially asking the Administrative Law Judges (ALJs) to do with this Motion is to allow Pintail to go back and totally redesign the landfill and virtually all other aspects of it.

The following is a quote from Pintail attorney, Brent Ryan, in his Motion for Continuance (Note: SHWL = Seasonal High Water Level):

“Because of this newly-discovered water level information, Pintail’s permit application, which was based on the SHWL established using the previously collected data from the site, no longer satisfies the requirements of TCEQ’s permitting rules. For example, after the SHWL is adjusted based on the new groundwater level data, the excavation for the waste disposal cells at the Pintail Landfill as currently designed will extend below the adjusted SHWL. Until it evaluates this new data and makes appropriate revisions to its permit application, Pintail cannot finalize and submit prefiled evidence that shows compliance with TCEQ’s permitting requirements. The changes that will need to be made to Pintail’s permit application potentially affect nearly every aspect of the application and the testimony and exhibits of nearly all of Pintail’s witnesses.” (emphasis added).

This large rise in the water table should not have been a surprise to Pintail. One of the major points made by CALH and others, time and time again, at TCEQ Public Meetings and in comments sent to the TCEQ during the public comment period, is that the highest readings that Pintail took of the water table during the worst of the 2010 to 2012 drought, were not representative of normal conditions at the location. Yet, Pintail had designed the bottom of the liner to within inches of the readings they had taken during the worst of the drought conditions. In periods of normal and above normal rainfall, when the water table would certainly rise, the landfill liner would be submerged below the water table.

Pintail chose to ignore all the warnings, stick their head in the sand, figuratively, and stop taking readings of the water table after the application was declared technically complete by the TCEQ in late 2012. That is until CALH forced the issue by requesting a second site visit to re-examine these critical water table elevations on July 17th.

On Thursday, July 30, 2015, CALH and the City of Hempstead filed a Formal Response to Pintail’s Motion for Continuance, as well as a Motion for Summary Disposition. In those filings, the attorneys for CALH and the City of Hempstead argue that the Administrative Law Judges (ALJs) overseeing this matter should dispose of this case with a Proposal for Decision, recommending denial of the permit application based on the grounds that there is no longer any dispute over whether the application meets regulatory requirements, since Pintail now acknowledges that it does not.

Under the Administrative Code, SOAH and the ALJs are charged with the duty of conducting full, fair, and efficient hearings, and their main purpose is determining whether an application complies with all applicable statutory and regulatory requirements. There is no longer any dispute of that.

It is unimaginable that, after four years of fighting this landfill, with CALH and the City of Hempstead collectively having spent more than one million dollars on the CCH alone to prove that the application does not comply with the regulations, the ALJs could grant Pintail’s motion for continuance in order to amend “nearly all aspects” of their application on an issue that Pintail had, or surely should have, anticipated. That would be neither fair nor efficient, and would be a travesty of justice to the citizens of this County and of the State.