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Texas Disposal Systems Landfill, Inc., won a major procedural victory on September 16 in its long-running battle with Penske Truck Leasing Co., LP, and Zenith Electronics Corporation over the proper disposition of remnants of lead-containing Zenith cathode-ray picture tubes from an October 1997 accident that TDSL had accepted and mixed with its daily solid waste receipts. By a 2-1 vote, the Texas Commission on Environmental Quality overturned an earlier decision by Executive Director Glenn Shankle that declared 99 roll-off containers of this material to be nonhazardous waste that Penske could ship to another landfill as "special waste" - at a much lower cost to Penske.

Attorney Pam Giblin, representing Penske, sharply disagreed that her client had lost anything. She contended that only one of the three Commissioners declared the waste bins to contain hazardous waste. Giblin said that Penske will ultimately win its battle to have the waste reclassified and predicted that no one will be able to find even pockets of hazardous waste in the 99 containers. After all, testing to date has shown lead levels 500 times lower than the 500 parts per million lead that state and federal regulators agree is safe enough to be left in soils in residential properties in El Paso.

But TDSL's attorney Kerry Russell countered that two of the Commissioners (Chairman Kathleen White and Larry Soward) completely rejected Penske's position and accepted the concept that the waste became hazardous at the point of generation and that it could not be made nonhazardous via dilution or mixing. As there is therefore D008 characteristic hazardous waste still present in some or all of the 99 containers, Penske has but two real choices: separate the hazardous waste from the non-hazardous component and handle each batch accordingly, or submit to TDSL's proposal to declare all 99 containers as hazardous waste and send them to an appropriate facility for treatment.

Penske is also back to square one regarding TCEQ's notice of violation for such actions as failing to conduct a hazardous waste determination prior to sending the waste to a landfill not authorized to accept hazardous waste. Shankle had been willing to absolve Penske of any wrongdoing in return for moving the waste off the TDSL property. The Commissioners gave no direction to staff as to how to proceed further in the agency's enforcement case against Penske, though Commissioner Soward had expressed his personal opinion as to what should be done to resolve the dispute.

This story began on a rainy October afternoon when a car swerved into oncoming traffic on northbound IH-35 near Buda. The Penske driver swerved to avoid hitting the much smaller vehicle and ended up in the ditch. Further damage to the 18-wheeler occurred as crews sought to right the vehicle and get it into towing position. The on-scene coordinator authorized the removal of debris from the accident, which included an unspecified number of color picture tubes, many of which had been shattered, to the nearby TDSL landfill. Penske says the total waste commingled was 98 cubic yards.

Later that day, Penske halted deliveries to TDSL because the debris included what is known as characteristically hazardous D008 waste - the picture tubes contained significant amounts of lead. Penske contractor Code 3 then removed the remaining debris from the accident scene and placed that material into roll-off containers that were stored at the TDSL facility. The very next day TDSL sorted out about 80 cubic yards of the commingled waste, hand-picking TV tube glass, and placed that material into additional roll-off containers. Penske claims that nearly all of the hazardous material was now out of the TDSL working face and resting in seven roll-off containers. In February 1998, Code 3 further segregated the stockpiled material and shipped two containers to a hazardous waste landfill and five others to a municipal solid waste facility for disposal.

According to Penske, TDSL was ready to resolve the incident, but wanted Penske to pay the sum of $320,000 in alleged damages. When Penske balked, TDSL filed suit in state district court. The suit languished for several years, but in January 2004 (prior to a promised trial), TDSL obtained authorization from TCEQ to isolate 1,600 cubic yards (presumably, the entire waste receipts from the day of the accident less what had already been removed) and insisted that Penske should remove this entire waste pile to a hazardous waste landfill for treatment as needed to meet land disposal requirements. Penske claimed this was a blatant attempt to extort money for TDSL's alleged storage of hazardous waste for six years. Indeed, the initial damage claim had mushroomed to several million dollars - including extended storage and legal fees.

The initial court case ground to a halt in April 2004 when the judge declared a mistrial after the Austin American-Statesman ran an article about the case that he deemed had prejudiced the jury. The article and mistrial declaration brought new attention to the dispute among the parties, including a harsh letter from state senator Gonzalo Barrientos demanding action from the agency to resolve the matter. Under pressure to do something, Shankle decided to give Penske a break and accept that company's proposal to downgrade the waste from hazardous to "special" - a waste class that can be disposed of much more cheaply. Shankle made his decision after TCEQ conducted limited testing of the waste in 20 of the 99 bins - via a protocol that was not accepted by TDSL's legal team.

TDSL then filed a motion to overturn Shankle's decision - an unusual step, to be sure, given that the procedure is normally confined to permitting (rather than enforcement) cases. Numerous lawyers gathered at the TCEQ agenda room on September 16 for a special one-item agenda, many of whom were just visiting - eager to watch the high-priced talent debate and the Commission decide. And for good reason. Commissioner R. B. "Ralph" Marquez noted that he had received "more letters on this issue from elected officials than on any other issue" in the 9-1/2 years that I have been here."

TDSL had assembled a legal team that included Russell, who commonly represents landfills, and co-counsel Kinnan Golemon, who had never before done so. Also on the team was Richard Lowerre, who for the first time in his career was representing an industry client. TDSL also brought in a couple of heavy hitters - former EPA Acting Administrator Marianne Horinko, who until earlier this year headed up the federal agency's Office of Solid Waste and Emergency Response, and engineer Robert Zoch, Jr., whose technical evaluation of TCEQ's mixed waste characterization program supported TDSL's position. Assistant Public Interest Counsel Eric Allmon also supported the motion to overturn.

Lined up on the other side of the aisle was a team led by attorney Pam Giblin, who (along with other members of the Baker Botts law firm) represented Penske , and Phillip Comella, a Chicago attorney representing Zenith. Lydia Gonzalez-Gromatzky, Deputy Director of the Office of Legal Services, supported Shankle's actions. Several other attorneys were involved in preparing huge piles of briefs through which the Commissioners had pored tirelessly in preparation for the day's jousting.

While several state lawmakers had filed letters supporting TDSL's case, only state representative Eddie Rodriguez (D, Austin) spoke at the hearing. Rodriguez minced no words as he blasted TCEQ for "seeming to be protecting Penske" through key actions and the lack of proper actions over the past seven years. He chided TCEQ for failing to act promptly at the time of the incident to initiate enforcement and take charge of the handling of the disputed waste. He criticized TCEQ's sampling protocol and said that large samples from the middle of each of the 99 bins should be analyzed rather than small samples from the outer edges of a fifth of the bins. And he was mortified that staff would authorize the reclassification of hazardous waste that had not undergone treatment to render the material nonhazardous and safe for disposal. This precedent-setting step could easily result in a plethora of companies seeking to downgrade hazardous waste through "unintentional" mixing.

Rodriguez' comments came during the middle of the afternoon session. Earlier, Russell had laid out his reasons for overturning Shankle's prior order. One was the public policy issue of whether unscrupulous waste generators might seize upon Shankle's generosity and carve out a loophole to allow them to claim "inadvertent commingling" of hazardous waste time and again. The other was the legal issue of creating an inadvertent commingling exception to the federal land disposal ban that was adopted pursuant to provisions of the Resource Conservation and Recovery Act.

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