·1· · · · · · · ·SOAH DOCKET NO. 582-18-3319· · · · · · · · TCEQ Docket No. 2013-1506-MSW·2

·3· APPLICATION BY RANCHO· · · § BEFORE THE STATE OFFICE· · VIEJO WASTE MANAGEMENT,· · §·4· LLC for MUNICIPAL SOLID· · §· · · · · ·OF· · WASTE PERMIT· · · · · · · ·§·5· NO. 2374· · · · · · · · · ·§ ADMINISTRATIVE HEARINGS

·6· ·*· *· *· *· *· *· *· *· *· *· *· *· *· *· *· *· * *

·7· · · · · · · · · THE ORAL DEPOSITION OF

·8· · · · · · · · ·GABRIEL ROJAS - VOLUME 1

·9· · · · · · · · · · ·January 25, 2019

10· · ·*· *· *· *· *· *· *· *· *· *· *· *· *· *· *· *· * *11

12· · · · · · ORAL DEPOSITION OF GABRIEL ROJAS, produced as

13· a witness at the instance of the Hurd Enterprises Ltd.

14· and duly sworn, was taken in the above styled and

15· numbered cause on the 25th day of January 2019,

16· from 3:36 p.m. to 5:21 p.m., before Sandra S. Givens,

17· CSR, in and for the State of Texas, reported by machine

18· shorthand method, at the offices of Baker Botts, LLP,

19· 98 San Jacinto Boulevard, Suite 1500, Austin, Texas

20· 78701, pursuant to the Texas Rules of Civil Procedure.

21

22

23

24

25

·1· · · · · · · · · A P P E A R A N C E S

·2

·3· FOR HURD ENTERPRISES, LTD and HURD RANCH COMPANY, LTD.

·4· · · ·Mr. Dan Miller· · · · ·Mr. Paul Touch·5· · · ·McElroy Sullivan Miller Weber & Olmstead, LLP· · · · ·1201 Spyglass, Suite 200·6· · · ·Austin, Texas 78746· · · · ·(512) 327-8111·7· · · ·dmiller@msmtx.com· · · · ·ptough@msmtx.com·8

·9· FOR RANCHO VIEJO WASTE MANAGEMENT, LLC

10· · · ·Mr. Derek McDonald· · · · ·Ms. Paulina Williams11· · · ·Baker Botts, LLP· · · · ·98 San Jacinto Blvd., Suite 150012· · · ·Austin, Texas 78701· · · · ·(512) 322-250013· · · ·derek.mcdonald@bakerbotts.com· · · · ·paulina.williams@bakerbotts.com14

15· FOR ANB CATTLE CO., LTD.

16· · · ·Mr. Leon V. Komkov· · · · ·Mr. David Garcia17· · · ·Cardwell Hart & Bennett, LLP· · · · ·807 Brazos, Suite 100118· · · ·Austin, Texas 78701· · · · ·(512) 322-001119· · · ·lvk@cardwellhartbennett.com

20· · FOR THE JORDAN GROUP and JEV FAMILY, LTD.21· · · · ·Mr. James M. Richardson22· · · ·Ms. Emily Gerald· · · · ·Ms. Riley Brown23· · · ·Richardson Firm, PLLC· · · · ·1509 West 6th Street, Suite A24· · · ·Austin, Texas 78703· · · · ·(512) 499-887925· · · ·jrichardson@richardson-firm.com

·1· FOR SPILL

·2· · · ·Ms. Marisa Perales· · · · ·Frederick Perales Allmon @ Rockwall, PC·3· · · ·1206 San Antonio Street· · · · ·Austin, Texas 78701·4· · · ·(512) 469-6000· · · · ·marisa@lf-lawfirm.com·5

·6· FOR THE WALKER GROUP

·7· · · ·Ms. Mary Whittle· · · · ·Guerrero @ Whittle, PLLC·8· · · ·2630 Exposition Blvd., Suite 102· · · · ·Austin, Texas 78703·9· · · ·(512) 605-2300· · · · ·mary@gwjustice.com10

11· FOR JOB PARTNERS

12· · · ·Mr. Joseph S. Cohen· · · · ·Rosenthal Law Firm, PLLC13· · · ·675 Bering Drive, Suite 150· · · · ·Houston, Texas 7705714· · · ·(713) 647-8177· · · · ·jcohen@rosenthallaw.com15

16· FOR WEBB COUNTY, TEXAS

17· · · ·Mr. J. Eric Magee· · · · ·Allison Bass & Magee18· · · ·A.O. Watson Houst· · · · ·402 W. 12th Street19· · · ·Austin, Texas 78701· · · · ·(512) 482-070120· · · ·emagee@allison-bass.com

21· FOR TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

22· · · ·Mr. Sheldon P. Wayne· · · · ·Mr. Eli Martinez23· · · ·Office of Public Interest Counsel· · · · ·12100 Park 35 Circle, Bldg. F24· · · ·Austin, Texas 78753· · · · ·(512) 239-314425· · · ·sheldon.wayne@tceq.texas.gov· · · · ·eli.martinez@tceq.texas.gov

·1· · · · · · · · · · · · I N D E X

·2

·3· Appearances - - - - - - - - - - - - - - - - - - - - - 2

·4· Exhibits - - - - - - - - - - - - - - - - - - - - - - 3

·5· GABRIEL ROJAS

·6· · ·Examination by Mr. Touch - - - - - - - - - - - - - 7

·7· Changes and Signature - - - - - - - - - - - - - - -· 80

·8· Reporter's Certification - - - - - - - - - - - - - - 82

·9

10· · · · · · · · · · · ·E X H I B I T S11

12· NO.· DESCRIPTION· · · · · · · · · · · · · · · · · PAGE

13· · Exhibit 21 - - - - - - - - - - - - - - - - - - - -· ·814· · ·Applicant's First Supplemental Responses to· · · ·Tex. R. Civ. P. 194 Requests for Disclosures15· · Exhibit 22 - - - - - - - - - - - - - - - - - - - -· ·916· · ·Pescadito Environmental Resource Center· · · ·Land Use Compatibility Analysis, March 201417· · Exhibit 23 - - - - - - - - - - - - - - - - - - - -· 2618· · ·Part II Application for Permit Type I Municipal· · · ·Solid Waste Facility - Pescadito Environmental19· · ·Resource Center

20· Exhibit 24 - - - - - - - - - - - - - - - - - - - -· 27· · · ·Texas Administrative Code §330.661, Subchapter B21· · ·Contents of Part II of the Application

22· Exhibit 25 - - - - - - - - - - - - - - - - - - - -· 38· · · ·Conditional Letter of Map Revision Request23· · ·Pescadito Environmental Resource Center

24· Exhibit 26 - - - - - - - - - - - - - - - - - - - -· 53· · · ·Six Color Photos Taken by Mr. Rojas at the Site25

·1· · · · · · · · · · · GABRIEL ROJAS,

·2· having been first duly sworn, testified as follows:

·3· · · · · · · · · · · ·EXAMINATION

·4· BY MR. TOUGH:

·5· · · ·Q· · Could you state your name for the record?

·6· · · ·A· · My name is Gabriel Rojas.

·7· · · ·Q· · And do you understand that I represent Hurd

·8· in this matter?

·9· · · ·A· · I do.

10· · · ·Q· · Have you had your deposition taken before?

11· · · ·A· · I have not.

12· · · ·Q· · Okay.· So this is your first time.· So if I

13· ask you a question that you don't understand, can you

14· ask me to stop and clarify it before you answer it?

15· · · ·A· · Certainly.

16· · · ·Q· · And if you need to take a break at any time,

17· just let me know.· I only ask that if I have a question

18· pending, that you answer the question before we take

19· the break.

20· · · ·A· · Before we take a break.· Makes sense, fair

21· enough.

22· · · ·Q· · And in response to my questions -- and you're

23· doing fine right now, but answering with a yes or a no

24· or verbally over nodding heads and things like that --

25· · · ·A· · Yeah.

·1· · · ·Q· · -- just because the court reporter can't pick

·2· up on that.

·3· · · ·A· · I see.

·4· · · ·Q· · Do you understand that today the answers that

·5· you give today are under oath?

·6· · · ·A· · I do.

·7· · · ·Q· · Okay.· What did you do to get ready for this

·8· deposition?

·9· · · ·A· · To get ready with this deposition I met here

10· yesterday to understand what a deposition is like. I

11· reviewed the application, both the original and some

12· of, some of the amendments as they relate to my area.

13· I reviewed the, the land use compatibility analysis

14· report that I originally developed in March of 2014,

15· and I've looked at -- since that time I've looked at

16· some recent aerial photography of the area, and, and

17· also, you know, in preparation for the report itself I

18· did a site visit out there, January of 2014.

19· · · ·Q· · All right.· Who did you meet with yesterday?

20· · · ·A· · Yesterday it was Paulina and Derek.

21· · · ·Q· · Did you meet with any experts?

22· · · ·A· · I did not.

23· · · ·Q· · What did you guys discuss in that meeting?

24· · · ·A· · We discussed how depositions generally go

25· and, and just some of the questions I might be asked

·1· and, and we had all, you know, the newest reports out

·2· on the table so I was able to look through some of the

·3· sections that pertained to my, to my area of expertise

·4· and see what, if anything, had changed.

·5· · · ·Q· · And when you say the newest report was on the

·6· table, what are you referring to?

·7· · · ·A· · I'm sorry.· Not report, but application.· And

·8· then also the permit and technical summary as well.

·9· · · ·Q· · And the permit, you're talking about a draft

10· permit?

11· · · ·A· · The draft permit.· Yes.

12· · · ·Q· · And the technical summary from the executive

13· director?

14· · · ·A· · From the executive director, yes, TCEQ.

15· · · ·Q· · What were some of the questions that they

16· asked you that they thought you might get in this

17· deposition?

18· · · ·A· · Some of the questions they asked me?

19· · · ·Q· · Yes.

20· · · ·A· · I'll try and recall.· For example, this very

21· first one you asked me, what I did to prepare was one,

22· kind of letting me know that might be asked.· And, and

23· I can't really recall any other specific questions they

24· asked me in terms of prepping.· It was, it was really

25· just a general overview of, This is how it goes, you'll

·1· be in this, this room with this amount of people.· And

·2· you'll have a court reporter and, and again, no

·3· nodding, saying yes or no.· Just general rules of the,

·4· rules of the game.

·5· · · ·Q· · And do you understand in this case that you

·6· have been designated as an expert witness for the

·7· applicant Rancho Viejo Waste Management?

·8· · · ·A· · Yes, I do.

·9· · · ·Q· · All right.· And I'm going to hand you what

10· we've got marked as Exhibit 21.· Have you seen this

11· exhibit before?

12· · · ·A· · I have.

13· · · ·Q· · All right.· And this was provided to us by

14· your -- by the counsel for Rancho Viejo Waste

15· Management as your expert disclosure.· Would you turn

16· to the back of the first page?· In the bottom it has a

17· page 8 on it, you see that?

18· · · ·A· · Yes.

19· · · ·Q· · Okay.· And you've seen this expert

20· designation before; is that right?

21· · · ·A· · I have.

22· · · ·Q· · Okay.· Did you draft this?

23· · · ·A· · I, I, I assisted in the draft.· I had a draft

24· sent to me.· I made some corrections and sent it back.

25· I think it was, was taken from my . . .

·1· · · ·Q· · Do you recall what those corrections were?

·2· · · ·A· · I do not.

·3· · · ·Q· · Now, it says here very first line that you

·4· are the sponsor of the report, "Pescadito Environmental

·5· Resource Center -- Land Use Compatibility Analysis."

·6· Do you see that?

·7· · · ·A· · Yes.

·8· · · ·Q· · Are you the sponsor of any other reports?

·9· · · ·A· · I am not, not as it pertains to this case.

10· · · ·Q· · Have you prepared any other reports other

11· than this land use compatibility in this case?

12· · · ·A· · I have not.

13· · · ·Q· · Are you planning to prepare any other reports

14· in this case?

15· · · ·A· · I'm not.

16· · · ·Q· · I'm going to hand you what I'm going to mark

17· as your next exhibit, Exhibit 22.

18· · · · · · · · · · · (Exhibit No. 22 marked.)

19· · · ·Q· · Would you identify that for me and tell me if

20· that's the report referenced in your designation?

21· · · ·A· · Yes.· After checking the pages, it is the

22· report referenced in my designation.

23· · · ·Q· · Is there only one version of your report?

24· · · ·A· · There is only one.

25· · · ·Q· · Okay.· And so you've not updated it since

·1· March 10th of 2014?

·2· · · ·A· · I have not.

·3· · · ·Q· · Do you plan to?

·4· · · ·A· · I do not plan to at this time.

·5· · · ·Q· · Do you have any prior drafts of this report?

·6· · · ·A· · I do not.

·7· · · ·Q· · Did anybody make any comments on this report?

·8· · · ·A· · At the time of submission, no.

·9· · · ·Q· · Have you prepared a report like your

10· Exhibit 22 for any other landfills?

11· · · ·A· · For any other landfills?· No.

12· · · ·Q· · All right.· Now, going back to your

13· designation, Exhibit 21, do you see the second

14· paragraph that begins with "The Land Use Compatibility

15· Analysis"?

16· · · ·A· · Yes.

17· · · ·Q· · Okay.· And it says that your report reflects

18· your opinions "regarding the proposed landfill's

19· compatibility with land use in the vicinity of the site

20· and the primary basis for those opinions."· Do you see

21· that?

22· · · ·A· · I do.

23· · · ·Q· · All right.· Are there any other documents

24· that you're aware of besides your report that reflect

25· your opinions?

·1· · · ·A· · There are no other documents.

·2· · · ·Q· · The opinion in your designation is that the

·3· proposed landfill will be a compatible land use with

·4· the surrounding uses; is that fair?

·5· · · ·A· · That's fair.

·6· · · ·Q· · Okay.

·7· · · ·A· · That's correct.

·8· · · ·Q· · Do you have any other opinions beyond that?

·9· · · ·A· · That was, that was my ultimate finding, so

10· there's nothing, nothing beyond.

11· · · ·Q· · Do you expect that your testimony will be

12· limited to the topic of land use compatibility?

13· · · ·A· · That's what I expect.· Yes.

14· · · ·Q· · Now, if we stick with the second paragraph,

15· and do you see the second sentence that ends with "and

16· that will not have an adverse impact on human health or

17· the environment"?· Do you see that?

18· · · ·A· · Yes.

19· · · ·Q· · Were those your words?

20· · · ·A· · Yes.

21· · · ·Q· · All right.· You came up with those words?

22· · · ·A· · This being a draft and me reviewing it, I

23· can't say exactly which lines were mine and were not,

24· but these are, these are directly out of the Texas

25· Administrative Code 330.61(h), so I imagine I did

·1· insert those in there.

·2· · · ·Q· · All right.· And so your, your opinion is,

·3· then, that the, that the proposed landfill will not

·4· have an adverse impact on human health or the

·5· environment; is that right?

·6· · · ·A· · As it relates to land use compatibility, yes.

·7· · · ·Q· · As it relates to land use compatibility.

·8· Okay.

·9· · · · · · · · ·Are you a toxicologist?

10· · · ·A· · I'm not.

11· · · ·Q· · Have you taken any classes on toxicology?

12· · · ·A· · I've not.

13· · · ·Q· · Have you written any papers on toxicology

14· issues?

15· · · ·A· · No.· I have not.

16· · · ·Q· · Do you consider yourself an expert in

17· toxicology?

18· · · ·A· · In toxicology I'm not.

19· · · ·Q· · All right.· Are you a medical doctor?

20· · · ·A· · I'm not.

21· · · ·Q· · Have you written any papers on medical

22· issues?

23· · · ·A· · No, I've not.

24· · · ·Q· · Do you consider yourself an expert on medical

25· issues?

·1· · · ·A· · No, I do not.

·2· · · ·Q· · Do you have any specialized knowledge or

·3· training in the medical field?

·4· · · ·A· · No, I do not.

·5· · · ·Q· · Do you have any specialized knowledge or

·6· training in the toxicology field?

·7· · · ·A· · No, I do not.

·8· · · ·Q· · Have you ever performed air dispersion

·9· modeling?

10· · · ·A· · No, I have not.

11· · · ·Q· · Have you ever been asked to estimate the air

12· emissions from a landfill?

13· · · ·A· · I have not.

14· · · ·Q· · Have you ever been asked to identify the

15· contaminants or pollutants that may be emitted or

16· released from a landfill?

17· · · ·A· · No, I have not.

18· · · ·Q· · Do you consider yourself an expert on air

19· emission impacts?

20· · · ·A· · No, I do not.

21· · · ·Q· · Do you consider yourself an expert on OSHA

22· standards?

23· · · ·A· · No.

24· · · ·Q· · Have you ever designed a groundwater

25· monitoring system?

·1· · · ·A· · No, I've not.

·2· · · ·Q· · Do you consider yourself an expert in

·3· hydrogeology?

·4· · · ·A· · No, I do not.

·5· · · ·Q· · Do you know the direction of groundwater flow

·6· at this site?

·7· · · ·A· · No, I do not.

·8· · · ·Q· · Do you consider yourself an expert in

·9· geology?

10· · · ·A· · No, I do not.

11· · · ·Q· · Have you ever designed a landfill liner

12· system?

13· · · ·A· · No, I have not.

14· · · ·Q· · Do you consider yourself an expert in

15· landfill liners?

16· · · ·A· · No, I do not.

17· · · ·Q· · Have you ever designed a lychee collection

18· system?

19· · · ·A· · No, I have not.

20· · · ·Q· · Are you familiar with the physical

21· characteristics of lychee?

22· · · ·A· · No, I do not.

23· · · ·Q· · Are you familiar with the physical

24· characteristics of industrial solid waste?

25· · · ·A· · No, I am not.

·1· · · ·Q· · Are you familiar with the physical

·2· characteristics of nonhazardous municipal solid waste?

·3· · · ·A· · No, I am not.

·4· · · ·Q· · Are you familiar with the physical

·5· characteristics of grease and grit-trap waste?

·6· · · ·A· · In terms of physical characteristics what do

·7· you, what do you mean by that?

·8· · · ·Q· · Well, so whether or not it's toxic, what its

·9· pH is?

10· · · ·A· · No.· I am not, I do not.

11· · · ·Q· · Are you familiar with the physical

12· characteristics of coal ash?

13· · · ·A· · No, I'm not.

14· · · ·Q· · Do you consider yourself an expert on noise

15· generation or mitigation issues?

16· · · ·A· · No, I do not.

17· · · ·Q· · Do you consider yourself an expert on odor

18· generation or mitigation issues?

19· · · ·A· · No, I do not.

20· · · ·Q· · Have you ever testified as an expert on

21· issues related to adverse impacts on human health?

22· · · ·A· · I have.

23· · · ·Q· · All right.· Can you explain what that

24· instance was?

25· · · ·A· · It was an international trial between the

·1· country of Ecuador and PIMCO -- I believe that was the

·2· oil company -- and I was tasked with reviewing oil

·3· contamination dispersion modeling throughout the

·4· country of Ecuador for an international criminal court

·5· in the Hague.

·6· · · ·Q· · Oil contamination dispersion modeling?

·7· · · ·A· · Yeah.

·8· · · ·Q· · And what does that involve?

·9· · · ·A· · Interpolation of discrete sample points to

10· develop a model of, of contamination destruction.

11· · · ·Q· · Is that --

12· · · ·A· · With groundwater flows.

13· · · ·Q· · Underground?

14· · · ·A· · Underground.

15· · · ·Q· · So plume modeling?

16· · · ·A· · Yes.

17· · · ·Q· · Okay.· And did you run the plume model?

18· · · ·A· · No.· I did not.· I was the reviewer of the

19· model that was run.

20· · · ·Q· · You reviewed the model?

21· · · ·A· · I reviewed the model.

22· · · ·Q· · And --

23· · · ·A· · My, my work with that was reviewing the model

24· and understanding the, the correct interpolation

25· techniques to apply to discrete sample points rather

·1· than the toxicology aspect of it itself.

·2· · · ·Q· · So did you have an opinion in that case,

·3· then, that as a result of the plume modeling and the,

·4· the toxicological estimates would not have an adverse

·5· impact on human health?

·6· · · ·A· · My job wasn't to determine whether it would

·7· or not.· It was whether the original model was done

·8· correctly or not.

·9· · · ·Q· · All right.· So have you --

10· · · ·A· · The original finding was that it would, but I

11· was -- that was not my role.

12· · · ·Q· · So have you testified, then, as an expert on

13· whether or not that oil contamination was going to have

14· an adverse impact on human health?

15· · · ·A· · It was -- no.· It was only on whether the

16· original model was correctly done, and my findings

17· weren't whether it would have an adverse effect or not.

18· · · ·Q· · And what was the name of the Ecuador case?

19· · · ·A· · I can't recall right now.

20· · · ·Q· · Did it involve Chevron?

21· · · ·A· · It may have involved a company that was

22· acquired by Chevron, but that wasn't their name at the

23· time.

24· · · ·Q· · Have you ever testified as an expert on the

25· adverse impacts that might result from a proposed

·1· action on the environment?

·2· · · ·A· · No.

·3· · · ·Q· · So when you say in your expert designation,

·4· Exhibit 21, that the Pescadito landfill will not have

·5· an adverse impact on human health or the environment,

·6· what is the basis of that opinion?

·7· · · ·A· · It is based on that it will not have an

·8· adverse impact on human health or the environment in

·9· terms of land use compatibility.

10· · · ·Q· · How does land use compatibility relate to

11· adverse impacts on human health or the environment?

12· · · ·A· · Well, as the Texas Administrative Code

13· clearly lays out in 330.61 Section (h), the, the land

14· use compatibility analysis that is to be done to

15· determine whether it has an adverse health, impact on

16· health of the environment looks at five discrete

17· issues:· One, zoning; two, character of surrounding

18· land uses within one mile of the site; three, growth

19· trends within five miles of the site; four -- maybe

20· I'll have to look at it again, let's see, character of

21· surrounding uses within -- types of uses, churches

22· schools, residences, retail, within five miles of the

23· site; and any wells within 500 feet of the site.· So I

24· determined this statement based on the Texas

25· Administrative Code.

·1· · · ·Q· · And, and it's based on those five things you

·2· just identified?

·3· · · ·A· · Right.· In Section (h) of 330.61.

·4· · · ·Q· · Okay.· And in your opinion, how do those five

·5· things relate to whether or not there's going to be an

·6· adverse impact on human health?

·7· · · ·A· · They are -- they relate in terms of, of uses

·8· that are incompatible with each other being too closely

·9· sited to one another, and that is land use

10· compatibility at its core.

11· · · ·Q· · So --

12· · · ·A· · Two land uses can be compatible or not when

13· they're situated right next to each other.

14· · · ·Q· · So if something is zoned or not zoned, that

15· has an impact on whether or not someone is going to be

16· adversely affected from a health standpoint?

17· · · ·A· · If something is zoned or not zoned?· Not

18· necessarily.· It depends on how it's zoned.· It's not

19· whether it is or not zoned.· So I would, I would be, I

20· would be presupposing that Texas Legislature's

21· authority on this in saying that counties can't zone

22· and then saying that they are in that way having

23· an -- you know, allowing counties to have adverse

24· health impacts on human population.· It is not whether

25· zoning is in place or not.· It's how the zoning is, is

·1· established and, and operated and maintained, how the

·2· zoning ordinance is.

·3· · · ·Q· · Have you ever testified as an expert and

·4· offered opinions on the health or environmental impacts

·5· of a landfill besides this case?

·6· · · ·A· · No, I have not.

·7· · · ·Q· · Now, your designation states that you may

·8· also offer testimony on three other things, and one of

·9· them is regional land use compatibility.· You see that

10· one?· It's the very last sentence of the second

11· paragraph.

12· · · ·A· · The second paragraph.· Yes.

13· · · ·Q· · All right.· What do you mean by regional land

14· use compatibility?

15· · · ·A· · When you talk about the region you're talking

16· about something not at a neighborhood scale but more on

17· a larger scale.· So when we're talking about a

18· five-mile boundary, you're looking at a region rather

19· than, rather than an area.· And so that is simply the

20· terminology applied to an area of that size.

21· · · ·Q· · So is it different than the land use

22· compatibility study you did in your Exhibit 22, your

23· report?

24· · · ·A· · If you could clarify that.· Is what

25· different?

·1· · · ·Q· · Well, you have separately identified with the

·2· last sentence of paragraph 2 that you may also offer

·3· testimony on regional land use compatibility, and what

·4· I'm asking is, is that different than the land use

·5· compatibility work that you have done in your

·6· Exhibit 22?

·7· · · ·A· · No.· That's not different.

·8· · · ·Q· · So it's, it's the same land use compatibility

·9· study?

10· · · ·A· · Right.

11· · · ·Q· · Okay.

12· · · ·A· · Yes.

13· · · ·Q· · All right.· The second one that you have

14· listed there is zoning, that you may offer testimony on

15· zoning.· What testimony do you anticipate offering on

16· zoning that is separate from what is in your report,

17· Exhibit 22?

18· · · ·A· · I can't, I can't anticipate anything I

19· haven't been asked.· Whatever questions that may come

20· up about zoning in terms of county authority or city

21· authority I'm ready to answer based on my past

22· experience.

23· · · ·Q· · At this --

24· · · ·A· · And expertise.

25· · · ·Q· · At this time you don't have any additional

·1· opinions on zoning other than what is in your report,

·2· Exhibit 22?

·3· · · ·A· · Right.· Correct.

·4· · · ·Q· · And then the third thing you've identified

·5· there is historic land use related to the area

·6· surrounding the proposed landfill, and with that one

·7· are there other opinions you plan to offer now on that

·8· issue other than what is in your Exhibit 22?

·9· · · ·A· · No.· There are not -- no other opinions I'm

10· prepared to offer on that.

11· · · ·Q· · Now, your Exhibit 21 also has your resume

12· attached to it.· Do you see that?

13· · · ·A· · Yes.

14· · · ·Q· · Is that your current resume?

15· · · ·A· · It is my resume -- yeah.· It's my current

16· resume I believe submitted -- it's my current one.· I,

17· I will move things around based on the project I'm

18· working on in terms of -- you know, it's not date-based

19· but more subject-matter based, depending on what I,

20· what I choose to move to the top.· But most of the

21· major projects I've worked on are in here.

22· · · ·Q· · Do you take stuff off depending on what

23· project you're working on?

24· · · ·A· · If there, if there's not enough room for a

25· two-page, I may take some things off, but in this case

·1· it's probably -- it has -- well, I mean, I can't -- I

·2· couldn't -- I wouldn't be able to fit everything I've

·3· worked on, on two pages.· But yeah, there are things

·4· that have been smaller projects I just don't, don't

·5· need a --

·6· · · ·Q· · Did you --

·7· · · ·A· · -- list of.

·8· · · ·Q· · -- take anything off your resume before it

·9· was provided to counsel for Rancho Viejo Waste

10· Management?

11· · · ·A· · No.· I did not.

12· · · ·Q· · Does your resume, in your opinion, accurately

13· reflect your background and experience?

14· · · ·A· · Yes, it does.

15· · · ·Q· · Now, how many of your projects have involved

16· municipal solid waste of landfills?

17· · · ·A· · How many of my projects?· This would be the

18· first one.

19· · · ·Q· · What about other types of landfills besides

20· municipal solid waste landfills?· Do you have any

21· experience with those?

22· · · ·A· · No, I do not.

23· · · ·Q· · When did you become involved in the Pescadito

24· landfill project?

25· · · ·A· · I believe the company I was working for, RPS,

·1· or Espy Consultants at the time, signed a contract to

·2· produce a very narrow, narrowly scoped land use

·3· compatibility analysis report in November of 2013.

·4· · · ·Q· · You were hired in November of 2014?

·5· · · ·A· · 2013.

·6· · · ·Q· · 2013?

·7· · · ·A· · Yeah.

·8· · · ·Q· · Okay.· To produce a very narrowly scoped,

·9· what was the term you used?

10· · · ·A· · Land use compatibility analysis --

11· · · ·Q· · All right.

12· · · ·A· · -- for this project.

13· · · ·Q· · All right.· And is that narrowly scoped

14· compatibility analysis your Exhibit 22?

15· · · ·A· · It is reflected in my Exhibit 22.

16· · · ·Q· · And who contacted you to get involved in this

17· project?

18· · · ·A· · A man by the name of James Isensee who worked

19· for RPS at the time, and I believe it was his

20· relationships that secured the, secured the work.

21· · · ·Q· · His relationships with who?

22· · · ·A· · I'm not, I'm not quite sure if he knew Carlos

23· directly or anyone else that may have been on the team

24· at the time.

25· · · ·Q· · All right.· Do you know who hired you in this

·1· case?

·2· · · ·A· · Directly I'm not sure.· I was, I was not, I

·3· was not at that level.

·4· · · ·Q· · Who pays your bills?

·5· · · ·A· · Currently or at the time?

·6· · · ·Q· · At the time.

·7· · · ·A· · At the time it was Espy Consultants.

·8· · · ·Q· · All right.· Do you know who Espy billed for

·9· your work?

10· · · ·A· · Grissom and Thompson, the law firm.

11· · · ·Q· · All right.· And currently do you know who

12· pays your bills?

13· · · ·A· · The, the company that, that -- Rancho Viejo

14· Waste Management, I believe, LLC.

15· · · ·Q· · So you were initially contacted in November

16· of 2013 and then produced this report in March 2014?

17· · · ·A· · Correct.

18· · · ·Q· · All right.· And so you became involved in

19· this case after the site for the landfill had already

20· been selected; is that right?

21· · · ·A· · Yes.

22· · · ·Q· · Okay.· Now, did you prepare any part of the

23· application for the Pescadito landfill?

24· · · ·A· · Did I prepare any part of it?· No, I did

25· not.

·1· · · ·Q· · All right.· Did you prepare any part of the

·2· land use compatibility application for the Pescadito

·3· landfill?

·4· · · ·A· · No.· I did not.

·5· · · · · · · · · · · (Exhibit No. 23 marked.)

·6· · · ·Q· · I hand you what I've marked as Exhibit 23.

·7· Have you seen this document before?

·8· · · ·A· · I have.

·9· · · ·Q· · And does this appear to be the part of the

10· current application that addresses land issues --

11· · · ·A· · It --

12· · · ·Q· · -- or land use issues?

13· · · ·A· · It does.

14· · · ·Q· · All right.· And this is not something that

15· you prepared; is that correct?

16· · · ·A· · It is not.

17· · · ·Q· · Do you know who did prepare this?

18· · · ·A· · I do not.

19· · · ·Q· · Have you reviewed this part of the

20· application?

21· · · ·A· · I have.

22· · · ·Q· · All right.· And do you agree with the

23· information that's in this part of the application,

24· Exhibit 23?

25· · · ·A· · As I have not reviewed the maps that well, I

·1· cannot speak to the maps themselves, but I have

·2· reviewed the text in preparation of my application, and

·3· this was the text that was in place at the time.

·4· · · ·Q· · All right.· Well, do you have any changes or

·5· criticisms to the text of this part of the application?

·6· · · ·A· · I do not.· Even though some of the data I

·7· used for mine was a little bit more recent, current, I

·8· found that my findings were entirely consistent with,

·9· with what was done originally.

10· · · ·Q· · Now, are you -- I assume you're familiar with

11· TCEQ's municipal solid waste rules that address land

12· use compatibility, is that --

13· · · ·A· · Yes.

14· · · ·Q· · Now, were you familiar with those rules prior

15· to your involvement with the Pescadito landfill?

16· · · ·A· · No, I was not.

17· · · ·Q· · I'm going to hand you what we're going to

18· mark as Exhibit 24 to your deposition.

19· · · · · · · · · · · (Exhibit No. 24 marked.)

20· · · ·Q· · And if you could take a look at that, is this

21· the TCEQ's rule that includes the part that addresses

22· land use compatibility?

23· · · ·A· · One second.· Yes.· Yes.· Section (h) --

24· · · ·Q· · All right.

25· · · ·A· · -- of this document.

·1· · · ·Q· · All right.· Section (h), and that is

·2· 330.61(h); is that right?

·3· · · ·A· · That's correct.

·4· · · ·Q· · Do any other parts of this rule, in your

·5· opinion, apply to land use compatibility analysis?

·6· · · ·A· · No.· They do not as it is laid out by the

·7· Texas Administrative Code.

·8· · · ·Q· · All right.· What about (g)?

·9· · · ·A· · (g) is a land use map, and so it doesn't get

10· into the analysis portion of it, but it does deal with

11· land use and, and showing, you know, uses, easements,

12· pipelines that are in the vicinity of the site.

13· · · ·Q· · Is that something that's used as part of the

14· land use compatibility analysis?

15· · · ·A· · The map itself?· Yes, it is.

16· · · ·Q· · All right.· Are you aware of any other

17· municipal solid waste rules that might apply to a land

18· use compatibility analysis?

19· · · ·A· · No, I'm not.

20· · · ·Q· · All right.· Have you ever prepared a land use

21· map referenced in 331 -- 330.61(g) before?

22· · · ·A· · A land use map specifically for a municipal

23· solid waste facility?

24· · · ·Q· · Yes.

25· · · ·A· · No.

·1· · · ·Q· · Let's look at your Exhibit 23, and

·2· specifically at Figure 8, which is entitled "Land Use

·3· Map."· Do you see that?

·4· · · ·A· · Yes.

·5· · · ·Q· · All right.· Now, do you agree that a land use

·6· map is supposed to show the actual uses both within the

·7· facility and within one mile of the facility?

·8· · · ·A· · Yeah.· I agree.

·9· · · ·Q· · All right.· Does Figure 8 show the actual

10· uses within the facility and within one mile of the

11· facility?

12· · · ·A· · It does.

13· · · ·Q· · Okay.· What are those uses within one

14· mile -- within the facility and within one mile of the

15· facility?

16· · · ·A· · Okay.· Per note 3, "100 percent of land use

17· at and within one mile of proposed facility is cattle

18· ranching intermixed with oil and gas production."

19· · · ·Q· · And you agree with Note 3 that 100 percent of

20· the land use within one mile of the proposed facility

21· is cattle ranching intermixed with oil and gas

22· production?

23· · · ·A· · I agree.

24· · · ·Q· · So there is no residential use within one

25· mile of the proposed facility?

·1· · · ·A· · There are only supplementary residential

·2· uses.· The major land use for that area is, is cattle

·3· ranching, and those are only in supplement to it.

·4· · · ·Q· · But that -- you know, maybe I'm drawing,

·5· cutting hairs here, but --

·6· · · ·A· · Um-hm.

·7· · · ·Q· · -- do you consider a hundred percent to be

·8· the major use or, or equivalent with major use, or

·9· something less than a hundred percent?

10· · · ·A· · Well, if we were to pull out the existing

11· ranch buildings that are, that are the housing for the

12· ranch hands of Yugo Ranch as separate from the ranch

13· itself, then yeah, you could say something less than a

14· hundred is, is cattle ranching use.

15· · · ·Q· · That would be your opinion, that something

16· less than a hundred percent is cattle ranching use?

17· · · ·A· · That wouldn't be my opinion.· If you pulled

18· them out as a use separate to, not ancillary of, then

19· yes.· You can say that.

20· · · ·Q· · Okay.· And you've done your own land use map,

21· have you not?

22· · · ·A· · I have.

23· · · ·Q· · You haven't used this land use map?

24· · · ·A· · No, I did not.

25· · · ·Q· · All right.· And so when we go look at that

·1· land use map we will see that you have identified a

·2· hundred percent of the land use within one mile to be

·3· cattle ranching; is that right?

·4· · · ·A· · I'd have to look at my report once again.

·5· · · ·Q· · And what are you looking at?

·6· · · ·A· · It would be my Exhibit 2 land use map.

·7· · · ·Q· · And that's Exhibit 2 to Rojas Exhibit 22?

·8· · · ·A· · Yes.· Okay.· And so yeah, it's a matter of

·9· how, how you pull it out.· So this information, I'm not

10· sure the genesis of this information.· In the notes it

11· does, it does reference the two residential structures

12· and one mobile home ranch in Figure 8, Part II that you

13· referenced earlier.· On my Exhibit 2 land use map of

14· Exhibit 22 I'm using county-level parcel data.· And so,

15· and so what is called farm and ranch and raw grazing

16· could conceivably be in the same, in the same bucket as

17· cattle ranching.

18· · · ·Q· · Okay.· Well, what about --

19· · · ·A· · Because there is no use called cattle

20· ranching within Webb County's official appraisal

21· district database or list of uses.

22· · · ·Q· · Okay.· What about the residential use you

23· have identified on your Exhibit 2?

24· · · ·A· · So the residential use doesn't call out the

25· ranch buildings on the site itself, but it does call

·1· out a couple of parcels on the extreme southern end of

·2· the site that are considered residential by the, by the

·3· county.

·4· · · ·Q· · And what about the wildlife management

·5· improved pasture?· Is that cattle raising?

·6· · · ·A· · Typically.

·7· · · ·Q· · Have you been to that site?

·8· · · ·A· · Let's see, what is the -- I haven't been onto

·9· it myself, because it is private property, but I was at

10· the edge of it.

11· · · ·Q· · So now that you've had a chance to look at

12· your Exhibit 2, do you believe it is an accurate

13· representation to say that a hundred percent of the

14· land use at and within one mile of the proposed

15· facility is cattle ranching intermixed with oil and gas

16· production?

17· · · ·A· · I can't make that determination right now,

18· because this was done in 2014, as you know in Exhibit

19· 22.· This land use map was certified on August 15th of

20· 2017.· So in that interim time period the land use may

21· have changed.· This is, this we're looking at two

22· different times.

23· · · ·Q· · All right.· And where do you see that it was

24· certified in August of 2017?

25· · · ·A· · By Michael Oden.· Here was his professional

·1· engineering stamp, State of Texas.

·2· · · ·Q· · Do you see that this is based on a topo map?

·3· · · ·A· · I do.

·4· · · ·Q· · All right.· And what's the date of the topo

·5· map?

·6· · · ·A· · Let's see, the topo map itself is, is 1980,

·7· USGS map.

·8· · · ·Q· · And --

·9· · · ·A· · As was typical at the time.

10· · · ·Q· · And so the features on the topo map have not

11· been updated since 1980; is that right?

12· · · ·A· · If that is the base map or the background for

13· this image, then yeah.· You could probably, you could

14· probably say these topo lines are, are the original

15· ones from that USGS map.

16· · · ·Q· · In sticking with Figure 8, have you -- do you

17· see any oil or gas wells identified in Figure 8?

18· · · ·A· · I do not.

19· · · ·Q· · Do you see any pipelines identified on Figure

20· 8?

21· · · ·A· · I do not.

22· · · ·Q· · Any ponds?

23· · · ·A· · I do see ponds identified.

24· · · ·Q· · Okay.· And do you see in the legend the open

25· square --

·1· · · ·A· · Yes.

·2· · · ·Q· · -- that relates to a pond?

·3· · · ·A· · Um-hm.

·4· · · ·Q· · Do you see any open squares on Figure 8?

·5· · · ·A· · I don't know what you mean by open square.

·6· You mean a square with, with -- that's white, filled

·7· with white?· Or a . . .

·8· · · ·Q· · Do you see the symbol that they've associated

·9· with --

10· · · ·A· · For pond or lake.

11· · · ·Q· · -- ponds?

12· · · ·A· · Yes.

13· · · ·Q· · All right.· However you want to describe that

14· symbol --

15· · · ·A· · Yeah.

16· · · ·Q· · -- is fine by me.

17· · · ·A· · Um-hm.

18· · · ·Q· · But do you see that symbol on Figure 8?

19· · · ·A· · Of a pond or a lake?

20· · · ·Q· · With the symbol from the legend.

21· · · ·A· · This is a very -- it's a photocopied image,

22· but I do see the white areas that are meant to

23· represent the pond or lakes.

24· · · ·Q· · The white areas?

25· · · ·A· · Yeah.· The white areas.· So basically, that's

·1· what the legend is calling out, these white areas are

·2· ponds or lakes.

·3· · · ·Q· · Do you see the arrow that points to what is

·4· called an "All-Weather Access Road to S.H. 359"?

·5· · · ·A· · Yes, I do.

·6· · · ·Q· · Is it your opinion that there's an existing

·7· all-weather access road from the facility to State

·8· Highway 359?

·9· · · ·A· · I, I did not make that determination in my,

10· in my report, so that's not something I reviewed.

11· · · ·Q· · So you're not going to be testifying as to

12· the nature of the roads that will be used to access the

13· facility from State Highway 359?

14· · · ·A· · Correct.

15· · · ·Q· · So you're not going to be testifying as to

16· the adequacy of those roads?

17· · · ·A· · Correct.

18· · · ·Q· · As to their availability?

19· · · ·A· · Correct.

20· · · ·Q· · Okay.· Are you relying on somebody else for

21· that?

22· · · ·A· · I am.

23· · · ·Q· · I think you said earlier that you have been

24· to the location of the proposed Pescadito landfill; is

25· that right?

·1· · · ·A· · I have.

·2· · · ·Q· · And when was that?

·3· · · ·A· · That was in January of 2014.

·4· · · ·Q· · And were you there for a day?

·5· · · ·A· · I was there for a day.

·6· · · ·Q· · Do you remember which day?

·7· · · ·A· · I do not.

·8· · · ·Q· · Did you take any pictures during that visit?

·9· · · ·A· · I did.

10· · · ·Q· · Did you take any videos?

11· · · ·A· · I did not.

12· · · ·Q· · All right.· And so if we look at the, the

13· land use compatibility rule, which we have identified

14· as -- I can't recall what exhibit number that is.

15· · · ·A· · Is it 24, Texas Administrative Code?

16· · · ·Q· · 24.· Can you look at 330.61(h)?

17· · · ·A· · Yes.

18· · · ·Q· · Okay.· "Impact on surrounding area"?

19· · · ·A· · Yes.

20· · · ·Q· · One aspect of that rule is that the owner is

21· required to provide information about zoning; is that

22· right?

23· · · ·A· · That's correct.

24· · · ·Q· · And that if a special permit from the local

25· government is required, a copy of that approval shall

·1· be submitted; is that right?

·2· · · ·A· · I don't see special permit.· It says, "If the

·3· site requires approval as a nonconforming use or a

·4· special permit from the local government having

·5· jurisdiction" --

·6· · · · · · · · · · · THE REPORTER:· Could you slow down

·7· when you're reading?

·8· · · · · · · · · · · THE WITNESS:· Oh, sorry.

·9· · · ·A· · "If the site requires approval as a

10· nonconforming use or a special permit from the local

11· government having jurisdiction, a copy of such approval

12· shall be submitted."

13· · · ·Q· · All right.· So you see the reference to a

14· special permit?

15· · · ·A· · I do.

16· · · ·Q· · Okay.

17· · · ·A· · Yes.

18· · · ·Q· · Okay.· And in this case is Webb County a

19· local government?

20· · · ·A· · Yes, it is.

21· · · ·Q· · Are you familiar with Webb County's flood

22· damage prevention order?

23· · · ·A· · I am not.

24· · · ·Q· · Have you looked at that at all in the context

25· of your work in this case?

·1· · · ·A· · I have not.

·2· · · ·Q· · So do you have an opinion, then, on whether

·3· or not that order would require Rancho Viejo Waste

·4· Management to obtain a permit from Webb County before

·5· constructing in an area of special flood hazard?

·6· · · ·A· · I do not.

·7· · · ·Q· · And do you plan to be offering any opinions

·8· on that subject?

·9· · · ·A· · I do not.

10· · · ·Q· · Will you be offering any opinions on whether

11· or not a floodplain development permit is required for

12· any part of the proposed landfill project?

13· · · ·A· · I will not.

14· · · ·Q· · Have you reviewed the flood insurance rate

15· map for this area where the Pescadito landfill will be

16· located?

17· · · ·A· · I have not.

18· · · · · · · · · · · (Exhibit No. 25 marked.)

19· · · ·Q· · I give you what I'm marking as Exhibit 25,

20· and this was a document that was included in the

21· documents that had been provided to you, or reviewed by

22· you, by counsel for Rancho Viejo Waste Management.· So

23· have you seen this document before?

24· · · ·A· · I have not.

25· · · ·Q· · Can you tell from the cover that it's a

·1· document that was prepared for Rancho Viejo Waste

·2· Management?

·3· · · ·A· · I can.

·4· · · ·Q· · All right.· And it's sealed by a professional

·5· engineer?

·6· · · ·A· · It looks to be that way.· Yes.

·7· · · ·Q· · All right.· Let's turn to the second page of

·8· your Exhibit 25, and do you see the section

·9· "Introduction"?

10· · · ·A· · Yes.

11· · · ·Q· · Do you see the second sentence of that

12· exhibit --

13· · · ·A· · I do.

14· · · ·Q· · -- where it says "The design requirements"?

15· Do you see that?

16· · · ·A· · Um-hm.

17· · · ·Q· · All right.· Do you agree that "The design

18· requirements for landfills dictate that a landfill

19· cannot be located within the 100-year floodplain"?

20· · · ·A· · Yes.· That's what I understand from TCEQ

21· rules.

22· · · ·Q· · So you agree with that statement?

23· · · ·A· · Yes.

24· · · ·Q· · Do you agree with the next statement, that

25· is, "Approximately 60 percent of the landfill location

·1· is currently located within a Zone A mapped area"?· Do

·2· you agree with --

·3· · · · · · · · · · · MS. WILLIAMS:· Objection, form.

·4· · · ·Q· · (By Mr. Tough)· Do you agree with that

·5· statement?

·6· · · ·A· · I do not.· I would have to see a land -- the

·7· site and a floodplain map to be able to make that

·8· determination.

·9· · · ·Q· · So it's not that you disagree with it, it's

10· that you don't know; is that correct?

11· · · ·A· · Yes.· It's that I don't have information on

12· that.

13· · · ·Q· · Okay.· Even though this was sealed by a

14· professional engineer?

15· · · ·A· · This was sealed, but it was in November 2011.

16· So I have no -- you know, to be able to say that's

17· accurate today I cannot.

18· · · ·Q· · Okay.· Do you have any reason to doubt that

19· it was not accurate in 2011?

20· · · ·A· · I understand the size of the site has

21· changed, and so without seeing that and overlaid on

22· floodplain maps I cannot make that determination.

23· · · ·Q· · Okay.· All right.· If you can flip back to

24· your Exhibit 23, and let's pull out Figure 8 again.

25· · · ·A· · Okay.

·1· · · ·Q· · Do you see the delineation in between the

·2· north area and the south area?

·3· · · ·A· · I do.

·4· · · ·Q· · All right.· And do you agree that the north

·5· area is separated from and not contiguous with the

·6· south area?

·7· · · ·A· · I do not.· It looks like there's a, there's a

·8· point at which they are contiguous.

·9· · · ·Q· · So you, you agree that the north area and the

10· south area meet at a single point?

11· · · ·A· · I don't know if I can call that single, based

12· on the scale of this.· Single could be a thousand feet,

13· could be a hundred feet.

14· · · ·Q· · So you don't know where the south area and

15· the north area meet?

16· · · ·A· · It looks like they meet towards the, the

17· upper left portion of the south area and the lower left

18· portion of the north area, but, you know, but to say

19· it's, you know, a single point, but I have no idea

20· whether it touches, goes away and touches again or not.

21· I'd have to be a -- you know, I'd have to look at it in

22· more detail.

23· · · ·Q· · I will --

24· · · ·A· · Closer in scale.

25· · · ·Q· · Can you assume for me that the north area and

·1· the south area meet at a single point?· Can you do

·2· that?

·3· · · ·A· · I, I can assume that they meet.· Yeah.

·4· · · ·Q· · Okay.

·5· · · ·A· · At that one area.

·6· · · ·Q· · And so for these next series of questions

·7· let's assume that the north area and the south area

·8· meet at a single point and only a single point.· In

·9· your opinion, do you agree, then, that the north area

10· and the south area are not contiguous?

11· · · · · · · · · · · MS. WILLIAMS:· Object to form.

12· · · ·A· · So from my background, a single point really

13· does mean a very small area, and so when you say

14· "single point" I cannot agree with that.· They do meet

15· in one area, and, and to say that they, they're not

16· contiguous in that meeting, you know, from -- to my eye

17· they look contiguous and at this scale.

18· · · ·Q· · (By Mr. Tough)· Do you know if it's possible

19· for a waste truck to move from the north area to the

20· south area without crossing another piece of property?

21· · · ·A· · I cannot make that determination.

22· · · ·Q· · You don't know?

23· · · ·A· · I don't know.· It looks like they would be

24· able to, but again, at this scale that's . . .

25· · · ·Q· · It looks like they would be able to if they

·1· only meet at a single point?

·2· · · · · · · · · · · MS. WILLIAMS:· Objection, form.

·3· · · ·A· · It looks like they'd be able to because they

·4· do meet.

·5· · · ·Q· · (By Mr. Tough)· At a single point?

·6· · · ·A· · I would just, I would just stop at they do

·7· meet.· I can't say a single point or not.

·8· · · ·Q· · Now, is it your understanding right now that

·9· Rancho Viejo Waste Management is not proposing to use

10· any part of the south area as a landfill?

11· · · ·A· · Could you repeat the question?

12· · · ·Q· · Sure.· So right now is it your understanding

13· that Rancho Viejo Waste Management is not proposing to

14· use any part of the south area as a landfill?

15· · · ·A· · From what I understand and in this, and in

16· this context of this land use map, yeah, it's only

17· going to use the north area, but the south area and the

18· north area seem to be a buffer from surrounding

19· property owners.

20· · · ·Q· · So the answer to my question is yes then?

21· · · ·A· · That it is going to be used for the landfill?

22· · · ·Q· · That right now it's your understanding that

23· Rancho Viejo Waste Management is not proposing to use

24· any part of the south area as a landfill.

25· · · ·A· · Right.

·1· · · ·Q· · Okay.· And your land use compatibility

·2· analysis is based on that understanding; is that right?

·3· · · ·A· · No.· At the time, if you go back to

·4· Exhibit 22, the north and south area are referenced at

·5· the entire land use site.· So based on my analysis, if

·6· this site has, has been reduced in size, then that

·7· one-mile area and that five-mile area have been

·8· reduced.

·9· · · ·Q· · So have you done a land use compatibility

10· analysis based on the revised landfill boundaries?

11· · · ·A· · I would say I have, because my earlier one

12· contains the area that this -- and all areas that, that

13· this new one would.

14· · · ·Q· · And so in your land use analysis that you did

15· before did you identify the uses within the landfill

16· boundary as proposed now?

17· · · ·A· · Did I identify the uses within the landfill

18· boundary as proposed now.· Yes.· That boundary is

19· wholly contained by the landfill boundary that I

20· originally --

21· · · ·Q· · And did you --

22· · · ·A· · -- analyzed.

23· · · ·Q· · And did you identify the uses of the land

24· within the area outside the waste footprint based on

25· the application that is before the TCEQ today?

·1· · · ·A· · I did.

·2· · · ·Q· · All right.· And where is that?

·3· · · ·A· · Where is what?

·4· · · ·Q· · Where is that analysis?

·5· · · ·A· · It is, it's still contained within my report.

·6· So since this area, this new approximate landfill

·7· boundary is contained within my landfill site, then my

·8· one-mile boundary and my five-mile boundary are

·9· actually beyond what would be considered the one mile

10· and five mile for this new site.· So all areas are

11· wholly contained within, within that new boundary.

12· · · ·Q· · When you're talking -- when you're referring

13· to "this map" are you referring to Exhibit 2?

14· · · ·A· · Of my -- yes.

15· · · ·Q· · Your report?

16· · · ·A· · Yes.· Exhibit 2 of Exhibit 22.

17· · · ·Q· · All right.· But there's no five-mile boundary

18· on that exhibit, is there?

19· · · ·A· · No.· Five-mile boundary is contained on

20· Exhibit 3.

21· · · ·Q· · Now, when I asked you earlier about your

22· familiarity with the Webb County flood damage

23· prevention order, that was not something you were

24· familiar with, right?

25· · · ·A· · I'm not familiar with it.

·1· · · ·Q· · All right.· Are you familiar with Webb

·2· County's siting ordinance?

·3· · · ·A· · No, I'm not.

·4· · · ·Q· · So then I take it you did not include that as

·5· a consideration or a factor within your land use

·6· compatibility study then?

·7· · · ·A· · No, I did not.

·8· · · ·Q· · All right.

·9· · · ·A· · In March 2014 I did not -- I was not aware of

10· any siting ordinance that I would, I would need to

11· consider.

12· · · ·Q· · And in March 2014 you were not aware of any

13· floodplain, Webb County floodplain development --

14· floodplain development permit requirement; is that

15· right?

16· · · ·A· · No.

17· · · ·Q· · All right.

18· · · ·A· · Not site specific.· I was looking at

19· compatibility with surrounding areas.

20· · · ·Q· · All right.· So when we look at your

21· report -- again, Exhibit 22 -- does this report discuss

22· at all the adverse impacts to human health or the

23· environment?

24· · · ·A· · In terms of how they relate to land use

25· compatibility, yes.

·1· · · ·Q· · All right.· Do the words "adverse human

·2· health" or "environment" appear at all in your report?

·3· · · ·A· · Well, let me check on that.· No.· Adverse

·4· impact to human health and environment is not

·5· specifically mentioned in my report.

·6· · · ·Q· · Can you turn to page 3 of your report?· And

·7· it's titled at the top "Character Surrounding Land

·8· Uses," you see that?

·9· · · ·A· · Yes.

10· · · ·Q· · All right.· In the second paragraph in the

11· third sentence do you see that, "The impacts of oil and

12· gas"?

13· · · ·A· · Um-hm.

14· · · ·Q· · All right.· And that sentence says, "The

15· impacts of oil and gas operations in the area are

16· mainly caused by increased vehicular traffic due to the

17· requirement of frequent access to well sites by large,

18· heavy vehicles, such as well drilling rigs, work-over

19· trucks, and tent trucks that haul produced fluid."

20· · · ·A· · Yes.· I see that.

21· · · ·Q· · All right.· What's the basis of that

22· statement?

23· · · ·A· · That is, that is pulled from the application.

24· · · ·Q· · Is that based on a study that you did?

25· · · ·A· · No.· It is not.

·1· · · ·Q· · So you're relying wholly on the information

·2· that was provided in the application?

·3· · · ·A· · In that, in that sentence related to vehicles

·4· that were -- are existing users of the, of the area,

·5· yes.

·6· · · ·Q· · All right.· And so you don't have an opinion

·7· on what, what it has increased from; is that right?

·8· · · ·A· · No.

·9· · · ·Q· · And you've not quantified what the

10· increase --

11· · · ·A· · No.· I have not.

12· · · ·Q· · -- was or is?

13· · · ·A· · No.

14· · · ·Q· · Or where it occurred?

15· · · ·A· · No.

16· · · ·Q· · Okay.· And do you see the sentence that

17· begins with, in the middle of that second paragraph,

18· "The majority"?· See that sentence?· "The majority of

19· the waste"?

20· · · ·A· · Yes.

21· · · ·Q· · Okay.· "The majority of the waste and

22· recyclable materials to be brought to PERC" -- and

23· that's the Pescadito.

24· · · ·A· · Yes.· Environmental Resource Center.

25· · · ·Q· · -- "will be hauled by rail."· Is that one of

·1· the factors that you relied upon in your land use

·2· analysis?

·3· · · ·A· · No, it is not.

·4· · · ·Q· · All right.· But yet you've included it in

·5· your character of surrounding land uses; is that

·6· correct?

·7· · · ·A· · Right.· To the, to the extent that

·8· transportation in and of itself is a, is a land use or

·9· it's a type of use.

10· · · ·Q· · So the fact that the waste may or may not be

11· brought by rail has no impact on your land use

12· compatibility analysis?

13· · · ·A· · It does not.

14· · · ·Q· · If we go to the two sentences down where you

15· say, "Road access to the site is via Jordan Road," do

16· you see that?

17· · · ·A· · Um-hm.

18· · · ·Q· · And you've identified --

19· · · ·A· · Yes.

20· · · ·Q· · And you've identified it as "an all-weather

21· surface roadway."· Do you see that?

22· · · ·A· · I do.

23· · · ·Q· · Is that your opinion, or are you relying on

24· somebody else to provide that?

25· · · ·A· · I'm relying on others to provide that.

·1· · · ·Q· · All right.· And then the next sentence after

·2· that begins with, "The adequacy of this road to support

·3· heavy truck traffic is evidenced by the existing use of

·4· the road."· Do you see that?

·5· · · ·A· · I do.

·6· · · ·Q· · Is that based on your opinion, or are you

·7· relying on somebody else for that?

·8· · · ·A· · I'm relying on others for that as well.

·9· · · ·Q· · And that's because you don't have any

10· specialized knowledge or training in road design?

11· · · ·A· · I do not.

12· · · ·Q· · Okay.· And road construction?

13· · · ·A· · I do not.

14· · · ·Q· · Or pavement design?

15· · · ·A· · I do not.

16· · · ·Q· · Or road maintenance?

17· · · ·A· · No.

18· · · ·Q· · Okay.· Do you know the size of the

19· waste-hauling trucks that will utilize Jordan Road if

20· this facility is built?

21· · · ·A· · I do not.

22· · · ·Q· · Do you know the weight of those trucks?

23· · · ·A· · I do not.

24· · · ·Q· · Do you know the weight of the oilfield trucks

25· that utilize Jordan Road?

·1· · · ·A· · I do not.

·2· · · ·Q· · All right.· The next paragraph, the third

·3· paragraph, talks about vehicle and equipment noise.· Do

·4· you see that?

·5· · · ·A· · I do.

·6· · · ·Q· · Have you performed any noise study related to

·7· the existing conditions?

·8· · · ·A· · I have not.

·9· · · ·Q· · Are you relying on somebody else to offer

10· opinions with regards to noise related to this

11· facility?

12· · · ·A· · I am.

13· · · ·Q· · And, and who would that be?

14· · · ·A· · It was, it was pulled from the application at

15· the time.· I don't remember the expert on which I

16· relied.

17· · · ·Q· · Third paragraph near the bottom a sentence

18· begins with "This however," do you see that?

19· · · ·A· · Um-hm.

20· · · ·Q· · And you've referenced low speeds that are

21· anticipated.· Do you see that?

22· · · ·A· · Um-hm.

23· · · ·Q· · What are the anticipated low speeds that

24· you're referencing?

25· · · ·A· · I believe that was in the application too,

·1· but just I think it was based on the, on the type of

·2· the road to be used and the, and the existing speed

·3· requirements, if I recall.· That was a --

·4· · · ·Q· · And what are --

·5· · · ·A· · -- that was a [crosstalk].

·6· · · ·Q· · -- the existing speed requirements?

·7· · · ·A· · I don't know what the posted speed limit on

·8· that road is.

·9· · · ·Q· · And what are the anticipated low speeds?

10· · · ·A· · I, I, I just relied on, on others that have

11· made that, that opinion -- that determination before I

12· came up with the land use compatibility study.

13· · · ·Q· · The next sentence you have there in paragraph

14· 3 is, "The increase in truck traffic noise resulting

15· from access to the facility is also expected to be

16· negligible."· Do you see that?

17· · · ·A· · Um-hm.

18· · · ·Q· · And is that your opinion, or is that somebody

19· else's opinion?

20· · · ·A· · That is someone else's.

21· · · ·Q· · All right.

22· · · ·A· · That is from the application.

23· · · ·Q· · Now, the fourth paragraph, the fourth

24· paragraph on that page talks about dust.· Do you see

25· that?

·1· · · ·A· · Um-hm.

·2· · · ·Q· · Any opinions --

·3· · · ·A· · I do.

·4· · · ·Q· · -- on dust are going to be coming from

·5· somebody else; is that right?

·6· · · ·A· · That's correct.

·7· · · ·Q· · Do you know who that's going to be?

·8· · · ·A· · I do not.

·9· · · ·Q· · And you said earlier you took some photos

10· when you were out there for your one-day site visit; is

11· that right?

12· · · ·A· · I did.

13· · · · · · · · · · · (Exhibit No. 26 marked.)

14· · · ·Q· · I'm going to hand you what we're marking as

15· Exhibit 26.· Do these look like some of the photos that

16· you have taken?

17· · · ·A· · Yes, they do.

18· · · ·Q· · Okay.· All right.· So the first photo, that

19· is labeled in the bottom right-hand corner Rancho Viejo

20· 028809.· Do you see that?

21· · · ·A· · I do.

22· · · ·Q· · All right.· This was a photo that you took.

23· Can you tell me why you took this photo?

24· · · ·A· · This is Jordan Road as it intersects with.

25· U.S. Highway 359.

·1· · · ·Q· · And do you agree that it's depicting a dust

·2· cloud there on Jordan Road?

·3· · · ·A· · It is depicting -- I mean it is depicting the

·4· intersection, but it does show some dust at that

·5· location.

·6· · · ·Q· · On Jordan Road?

·7· · · ·A· · On Jordan Road.

·8· · · ·Q· · And let's turn to the next page of this

·9· exhibit, which in the bottom right-hand corner is

10· RV 028817.

11· · · ·A· · Yes.

12· · · ·Q· · All right.· What is this a picture of?

13· · · ·A· · I do not, I do not recall.· It was one of the

14· roads in -- on the Rancho Viejo site, Yugo Ranch.

15· · · ·Q· · Is it your belief that this is one of the

16· access roads that they will use from State Highway 359

17· to eventually get to the proposed landfill?

18· · · ·A· · I can't say if it's one of the ones they will

19· use or not.

20· · · ·Q· · Let's go to your next picture, Rancho Viejo

21· 028825.· Do you see that?

22· · · ·A· · Yes.

23· · · ·Q· · What are you taking a picture of here?

24· · · ·A· · This is, this is one of the, one of the roads

25· in Yugo Ranch.· I believe it might have been -- this

·1· may be at the property line between -- just based on

·2· contextual clues from the image, which there's a sign

·3· that says "Posted.· No trespassing.· Keep out."

·4· · · ·Q· · Do you know if this is one of the roads that

·5· will be used to access the facility?

·6· · · ·A· · I do not.

·7· · · ·Q· · The next picture is Rancho Viejo 028828.· Do

·8· you see that?

·9· · · ·A· · I do.

10· · · ·Q· · And it looks like you've taken some pictures

11· of some cattle; is that correct?

12· · · ·A· · Yes, it does.

13· · · ·Q· · Are these some of the free-ranging cattle

14· that you saw when you were out there?

15· · · ·A· · Yes.

16· · · ·Q· · All right.· Do you recall where that is?

17· · · ·A· · That is near the site of the what was at the

18· time the proposed landfill area.

19· · · ·Q· · Next picture in the bottom right-hand corner,

20· Rancho Viejo 028831, do you know what this picture is

21· of?

22· · · ·A· · It is, it is one of the roads within Yugo

23· Ranch.

24· · · ·Q· · Do you know if this is one of the roads that

25· is going to be used as an access road for the proposed

·1· facility?

·2· · · ·A· · I do not.· As far as access roads within the,

·3· within the ranch and 359 itself, all I can rely on is

·4· the, is the application stating that it will be an

·5· all-weather paved road that will support the vehicular

·6· traffic.

·7· · · · · · · · · · · MR. TOUGH:· Objection,

·8· nonresponsive.

·9· · · ·Q· · Let's go to the next page, which is the last

10· one, Rancho Viejo 028833.· Again, is this another one

11· of the free-ranging cattle that you saw while you were

12· out there?

13· · · ·A· · Yes, it is.

14· · · ·Q· · All right.· Now, in your report, you

15· had -- which is Exhibit 22, you had included a picture

16· of a truck in Figure 1.

17· · · ·A· · Yes.

18· · · ·Q· · Do you know what kind of truck that is?

19· · · ·A· · I do not know specifically.· It looks like a

20· type of truck to carry liquids, oil and gas most

21· likely.

22· · · ·Q· · But you don't know what that truck's hauling?

23· · · ·A· · I do not know what it's hauling.

24· · · ·Q· · You don't know if it's full?

25· · · ·A· · I don't know if it's full.

·1· · · ·Q· · Or empty?

·2· · · ·A· · No.

·3· · · ·Q· · How much it weighs?

·4· · · ·A· · No.

·5· · · ·Q· · All right.· Now if we turn to the table in

·6· your report, Exhibit 22, which is Table 1, do you see

·7· that table?

·8· · · ·A· · Yes.

·9· · · ·Q· · All right.· This is the data that you relied

10· on to, to conduct your land use compatibility analysis;

11· is that right?

12· · · ·A· · It is.

13· · · ·Q· · All right.· And this is -- is it safe to say

14· that this data is either March 10th, 2014 or earlier?

15· · · ·A· · Yes.

16· · · ·Q· · Okay.· What is it about the percentages here

17· that make the Pescadito landfill a compatible land use?

18· · · ·A· · So the percentages here that make it a

19· compatible land use rely just on the historic use of

20· the land, of the ranch, Yugo Ranch itself and the, and

21· the, and the parcels surrounding it.· And, and these

22· generally just describe what is around it.· Them in and

23· of themselves don't describe whether it's compatible or

24· not.

25· · · ·Q· · So how did you -- did you use these? I

·1· thought you said you used these to do your land use

·2· compatibility analysis.

·3· · · ·A· · This was from Webb County Appraisal District,

·4· and it was used to understand the land use surrounding

·5· it.· The compatibility analysis looked at the history

·6· of these land uses and the, and the -- and more of the

·7· growth trends and in what direction they were going.

·8· · · ·Q· · So did you use these percentages in your land

·9· use compatibility analysis?

10· · · ·A· · I did.

11· · · ·Q· · Okay.

12· · · ·A· · To identify land uses directly around the

13· site, yeah.

14· · · ·Q· · All right.· And so how do you use those land

15· uses and these percentages to do your land use

16· compatibility analysis?

17· · · ·A· · Because they provide me a baseline from which

18· to know what is growing or what is declining in terms

19· of human population, commercial activity, traffic of

20· different types, and, and just from a general sense.

21· And so that gives me a baseline to start with, Well,

22· where was it?· You know, What is it today?· What has it

23· been in the past, and what is it going to look like in

24· the future?

25· · · ·Q· · Okay.· But the growth trends you looked at,

·1· you were looking at human growth trends; is that right?

·2· · · ·A· · Yes.

·3· · · ·Q· · All right.· And so your land use

·4· compatibility analysis, though, is focused on how land

·5· is used specifically for farming and ranching, wildlife

·6· management, raw grazing, and then you have an unknown.

·7· How does the growth trends work with those uses?

·8· · · ·A· · So within a mile of the site the growth

·9· trends really tell me, you know, between these uses,

10· which are very low intensity -- farm and ranch,

11· wildlife management, unknown, raw grazing -- what ratio

12· or what percentage of area has either been devoted more

13· to residential growth, commercial growth, industrial

14· growth, or has it remained the same over time.

15· · · · · · · · ·And through aerial imagery I could, you

16· know -- as I, as I stated on my report, I could see

17· that these, that these trends were stable and long

18· term.

19· · · ·Q· · Okay.· So if these trends are stable, how

20· does that affect how you use that in your land use

21· compatibility analysis?

22· · · ·A· · As I just stated, ratios would change as, as,

23· as time moved on.· So in my next growth section I said,

24· you know, This is what was in 2000 census data, this is

25· what's in 2010 census data.· We have a percentage of

·1· growth or decline in residential uses, and so we see

·2· that in this table of ratio of residential uses to

·3· other uses.

·4· · · ·Q· · Okay.· And so how does that make these uses

·5· and the proposed use as a landfill compatible?

·6· · · ·A· · They don't.· They just determine whether I

·7· need to go into more, more history as to, as to what is

·8· happening in the area.· For example, if residential use

·9· was 50 percent of the area, then, then issues such as,

10· you know, access might have been more in my, in my

11· wheelhouse.· You know, how does this road contribute to

12· the, to the access to and from the site.

13· · · · · · · · ·But since, you know, it was so small and

14· since the growth trend actually showed a negative

15· direction, that, that makes me understand on the land

16· use compatibility that we aren't, we aren't looking at

17· this in terms of a growth trend on residential or

18· commercial improvement.· We're looking at a longterm,

19· stable trend.

20· · · ·Q· · And so is your focus really, then, when

21· you're looking at this Table 1 on the residential land

22· use?

23· · · ·A· · It, it's more on -- yes.· You know, human,

24· human impact, because that is, that is what we're,

25· we're tasked with looking at on the Texas

·1· Administrative Code, its impact to human health and the

·2· environment.

·3· · · ·Q· · So is the residential land use factor, then,

·4· the most important one --

·5· · · ·A· · I would say so.

·6· · · ·Q· · -- in your opinion?

·7· · · ·A· · I would say so.

·8· · · ·Q· · In determining whether or not a landfill is a

·9· compatible land use?

10· · · ·A· · Yes.

11· · · ·Q· · When you say raw grazing here, what do you

12· mean by raw grazing?

13· · · ·A· · I don't have the definition in front of me.

14· I imagine it is ranch lands.· It is, it is a descriptor

15· in the Webb County Appraisal District.

16· · · ·Q· · So that's not your words?

17· · · ·A· · Those are not my words.

18· · · ·Q· · Is there anything specific about raw grazing

19· that makes it a compatible use with a municipal solid

20· waste landfill?

21· · · ·A· · Anything about it that makes it a compatible

22· use?

23· · · ·Q· · Right.

24· · · ·A· · Just that the, the low density of, of human

25· population contributes more to the compatibility --

·1· · · ·Q· · And so again --

·2· · · ·A· · -- with the, with the --

·3· · · ·Q· · -- you're focusing --

·4· · · ·A· · -- use of the landfill.

·5· · · ·Q· · -- on the, the human side of it; is that

·6· right?

·7· · · ·A· · Right.

·8· · · ·Q· · All right.· And not so much on the wildlife

·9· or the environmental side of it?

10· · · ·A· · Correct.

11· · · ·Q· · Does the fact that cattle are freely allowed

12· to cross across some of the access roads that will be

13· used if the landfill is actually constructed factor

14· into your analysis?

15· · · ·A· · No, it does not.

16· · · ·Q· · Okay.

17· · · ·A· · No, it does not.· That is a, that is a county

18· decision on whether they are required to fence them or

19· not.

20· · · ·Q· · What is it about the wildlife management that

21· makes it a compatible land use with a municipal solid

22· waste landfill?

23· · · ·A· · That the -- I mean, the priority is, you

24· know, low density of human population when you're

25· looking at land use, and in, and in planning

·1· terminology anytime you look at land use you're looking

·2· at human-to-human impacts, you're not looking to

·3· human -- if you're looking at endangered species or

·4· species that are, that are critically endangered or

·5· wildlife or specific environmental areas that could be

·6· impacted, then you start to cross over that.

·7· · · · · · · · ·But within American Planning Association

·8· terminology, when you're looking at land use you're

·9· looking at human-to-human impacts.

10· · · ·Q· · And again, for wildlife management you're

11· assuming that there are less humans involved with that

12· than, say, a residential use?

13· · · ·A· · Yes.

14· · · ·Q· · All right.· And would the same answer be

15· given for farm and ranch?

16· · · ·A· · Yes.

17· · · · · · · · · · · MS. WILLIAMS:· Just want to check,

18· did you need a break, or are you okay?

19· · · · · · · · · · · THE WITNESS:· What time is it?· How

20· long have we been in here?

21· · · · · · · · · · · MS. WILLIAMS:· It's 4:52.

22· · · · · · · · · · · MR. MILLER:· It's 4:52.

23· · · · · · · · · · · MS. WILLIAMS:· It's been over an

24· hour.

25· · · · · · · · · · · (At 4:52 p.m. the proceedings

·1· recessed, continuing at 5:02 p.m.)

·2· · · ·Q· · (By Mr. Tough)· So before we took a break we

·3· had been discussing the land uses that you identified

·4· in Table 1.

·5· · · ·A· · Yes.

·6· · · ·Q· · And we had just talked about farm and ranch,

·7· and now I want to ask you about the one you have

·8· labeled as unknown.· Do you see that?

·9· · · ·A· · Yes.

10· · · ·Q· · All right.· Is that -- does that mean that

11· your analysis is not complete?

12· · · ·A· · No.· Since this data was relying just from

13· Webb County Appraisal District data, that parcel in

14· particular did not have a parcel number that could be

15· related back to the appraisal roll database.· So it

16· didn't have any information from the county, so I'm

17· listing it as the county has it listed.· Through,

18· through additional aerial analysis that parcel itself

19· looked similar, if not exactly the same, to all uses

20· around it.

21· · · ·Q· · So similar to which one?· Farm and ranch,

22· wildlife management, raw grazing, or residential?

23· · · ·A· · Well, let's see.· Where is my unknown.· Okay.

24· So the unknown parcel is up at the -- and I'm looking

25· at the Exhibit 2 land use map of my report, Exhibit 22,

·1· and that unknown parcel is surrounded by parcels that

·2· are labeled as wildlife management or raw grazing.· And

·3· in my, in my aerial determination and determination at

·4· the site there, there was little, if any, difference

·5· between raw grazing and wildlife management, and then

·6· unknown was exactly the same as those two.· So . . .

·7· · · ·Q· · All right.· So let's stick with your

·8· Exhibit 2 though.

·9· · · ·A· · Okay.

10· · · ·Q· · If we look in the, the what I'll call the

11· southeast corner, do you see that little sliver of

12· residential?

13· · · ·A· · Yes.

14· · · ·Q· · Not the larger residential piece but the much

15· smaller one there in the, in the corner, do you see

16· that?

17· · · ·A· · I do.· You're saying just the corner of it?

18· · · ·Q· · Yes.

19· · · ·A· · Yeah.

20· · · ·Q· · And have you identified there a, a building

21· there on the corner?

22· · · ·A· · Not, not within the mile of the site.· No.

23· · · ·Q· · Okay.

24· · · ·A· · That is just the use listed within the

25· appraisal district.

·1· · · ·Q· · So there's not a brighter yellow square there

·2· in that corner?

·3· · · ·A· · I mean, as I -- you know, as stated, it is a

·4· residential use listed in the appraisal district, but

·5· within the, you know, the area of one mile from the

·6· landfill site there was not -- there is not a

·7· residential structure there.

·8· · · ·Q· · So if we looked at an aerial photograph of

·9· that, we wouldn't see a structure there?

10· · · ·A· · No.· No.

11· · · ·Q· · All right.· Let's go back to your Table 1.

12· You haven't made any other Table 1s, have you?

13· · · ·A· · No.

14· · · ·Q· · Land use percentages?

15· · · ·A· · No.

16· · · ·Q· · This is the only one, right?

17· · · ·A· · Only one.

18· · · ·Q· · Okay.· Is there a certain percentage of a

19· surrounding use that makes a landfill an incompatible

20· use?

21· · · ·A· · There is, there is no clear bright line on

22· that.· No.· There's no clear bright line on, on what

23· percentage of residential or commercial would then

24· consider it -- would make it incompatible.

25· · · ·Q· · Well, in your opinion, what do you consider

·1· to be a use that a landfill would be incompatible with?

·2· · · ·A· · An established area of, of residential

·3· subdivisions, small lots -- you know, I'm not talking

·4· tracts of land -- the subdivided parcels and lots that

·5· have, that have a history and, and growth trends in the

·6· positive direction would, would -- you know, at higher

·7· percentages in the area it would necessitate a -- you

·8· know, would be considered incompatible use.

·9· · · ·Q· · In your opinion, that would be considered to

10· be an incompatible use with a landfill?

11· · · ·A· · Um-hm.

12· · · ·Q· · So does that mean that landfills are

13· incompatible in urban areas?

14· · · ·A· · In, in very -- yeah, in urbanized areas that,

15· that have a history of development prior to the

16· establishment of the landfill I would consider them

17· incompatible.· It's an industrial use adjacent,

18· directly adjacent to a large, a large amount of

19· residential uses that have primacy and, and location in

20· time.

21· · · ·Q· · So in a rural area can you give me an example

22· of when a landfill would be an incompatible use?

23· · · ·A· · In a rural area it -- if it was -- again, it

24· depends on the situation.· It's, it's hard to, you

25· know, conjecture on when and where it would be

·1· incompatible in a rural area without looking at the

·2· specifics.· So in this one I have determined that it's

·3· compatible, but it would really depend on the specifics

·4· of, of each situation.

·5· · · ·Q· · So you can't think of an example of when a

·6· landfill would be an incompatible use in a rural area?

·7· · · ·A· · I'd say if there were -- I can think of an

·8· example:· Threatened and endangered species throughout

·9· the area.· If there were significant environmental

10· features such as karst features, things -- or, or

11· significant amounts of karst features that, that

12· support life that, that we may not have, have studied

13· yet and, and significant environmental features, I

14· think it wouldn't be compatible.

15· · · · · · · · ·But due to the low -- you know, in most

16· rural areas it is low densities of human populations,

17· and so that's why I believe this one in this case is

18· placed where it is.

19· · · ·Q· · And have you done any analysis in this case

20· on threatened or endangered species?

21· · · ·A· · I have not.· I relied on other experts for

22· that determination.

23· · · ·Q· · And have you done any analysis in this case

24· on whether or not there was karst features present?

25· · · ·A· · I did not.· I relied on others for that

·1· information.

·2· · · ·Q· · And where would threatened or endangered

·3· species show up in your land use Table No. 1?

·4· · · ·A· · They wouldn't.· They wouldn't be confined by

·5· parcel or, or land use.· They would be, you know,

·6· confined by their geographic area as determined by the,

·7· the -- I believe Texas Parks and Wildlife makes those

·8· determinations of, of where they are.· I may be wrong

·9· there.

10· · · · · · · · ·But, but yeah, it is a, it is a

11· different, it is a different layer of information.· So

12· it can cross, parcels that can cross land uses it can

13· cross jurisdictional boundaries.

14· · · ·Q· · And it wasn't part of your land use analysis

15· here in Table 1?

16· · · ·A· · No.· No, it was not.

17· · · ·Q· · Nor were karst features part of your land use

18· analysis here in Table 1?

19· · · ·A· · No, it was not.

20· · · ·Q· · All right.· Now, what standard or guidance

21· are you relying upon to determine what the appropriate

22· percentages are for surrounding land uses that a

23· landfill would be compatible with?

24· · · ·A· · I'm, I'm relying on my history as a land use

25· commissioner for the City of Austin.· I have six years

·1· and was elected chair of that commission.· So I have

·2· seen tens of thousands of land use cases and

·3· compatibility cases.

·4· · · · · · · · · · · MR. TOUGH:· And objection,

·5· nonresponsive.

·6· · · ·Q· · I was talking about what standard or guidance

·7· are you relying upon?

·8· · · ·A· · There is no standard.

·9· · · ·Q· · And no guidance?

10· · · ·A· · There's guidance as to other, other reports

11· having been done around the state as to when and where

12· these are located, and those that I relied on -- we're

13· going back five years now.· I'd have to go and get

14· the -- and pull those, but if they're not within my

15· disclosures, we will, we will add them to them.

16· · · ·Q· · So there is a -- when you're talking about

17· other reports are you talking about other reports other

18· people have done on land use compatibility?

19· · · ·A· · Other people, yes.

20· · · ·Q· · All right.

21· · · ·A· · Not that I've done.

22· · · ·Q· · All right.· And so you've relied on those

23· reports to do your land use compatibility analysis in

24· this case?

25· · · ·A· · I, I, I had some guidance documents at

·1· the beginning as to how they are done and, and what

·2· is -- what goes into them.· And whether that was on the

·3· Planning Association website or another report I can't

·4· recall at the moment, but I did have guidance, since

·5· this is my first land use compatibility analysis for a

·6· landfill.

·7· · · ·Q· · Were those TCEQ guidance documents that

·8· you're talking about?

·9· · · ·A· · I relied on TCEQ for the, for the just the

10· requirements of what they needed to see in the

11· application.

12· · · ·Q· · The rules?

13· · · ·A· · The rules.· Yeah.· I don't believe there are

14· any guidance documents on exactly -- or at the time

15· there wasn't on land use compatibility analysis.

16· · · ·Q· · All right.· So there aren't any standards and

17· you're not aware of any guidance documents that tell

18· you how to do a land use compatibility study; is that

19· right?

20· · · ·A· · For, for landfill?

21· · · ·Q· · Correct.

22· · · ·A· · Not that I can recall at this time.

23· · · ·Q· · All right.· Now, the TCEQ's Rules 330.61(g)

24· and (h) require you to identify certain features within

25· a mile of the facility.· Do you -- is that a fair

·1· statement?

·2· · · ·A· · That's a fair statement.

·3· · · ·Q· · And some of those features are residences; is

·4· that right?

·5· · · ·A· · Yes.

·6· · · ·Q· · Schools?

·7· · · ·A· · Yes.

·8· · · ·Q· · Daycare facilities?

·9· · · ·A· · Yes.

10· · · ·Q· · Churches?

11· · · ·A· · Yes.

12· · · ·Q· · Cemeteries?

13· · · ·A· · Yes.

14· · · ·Q· · Ponds?

15· · · ·A· · Um-hm.

16· · · ·Q· · Lakes?

17· · · ·A· · Yes.

18· · · ·Q· · Recreational areas?

19· · · ·A· · Yes.

20· · · ·Q· · In your opinion, do you know why you're

21· focusing on those specific features, why a pond is

22· required to be identified?

23· · · ·A· · I can't speculate as to why they put ponds as

24· a, as a, as a feature.· I think -- in typical base maps

25· that is, that is a land use feature that you'd want to

·1· know.· Now, why it's required for this particular case

·2· on land use -- I mean for landfills, I, I can't

·3· speculate as to why.

·4· · · ·Q· · So your land use analysis, then, didn't

·5· factor in whether or not there are ponds located within

·6· the one-mile radius of review?

·7· · · ·A· · I believe I did.· No, I did not.· No.· I did

·8· not map them and I did not reference them, but, but I

·9· think you're reading (g), right, land use map?· Yeah.

10· You're reading off of (g).· And so my, my -- you know,

11· as you can see in the, in the application, I did not

12· create the land use map.· So that is not that specific

13· issue.· Since it's not mentioned in (h) I did not add

14· it.

15· · · ·Q· · So it wasn't a factor that you used in your

16· land use compatibility analysis?

17· · · ·A· · No, it is not.

18· · · ·Q· · All right.· Did you factor into your land use

19· compatibility analysis the operating hours of the

20· proposed landfill?

21· · · ·A· · Yes, I did.

22· · · ·Q· · What are the operating hours for this

23· landfill?

24· · · ·A· · I'd have to reacquaint myself with those. I

25· haven't read that since I read the application

·1· initially.

·2· · · ·Q· · But you believe you included them as a

·3· factor?

·4· · · ·A· · As a factor I believe I did.

·5· · · ·Q· · And how did they -- how did you use them as a

·6· factor in your land use compatibility analysis?

·7· · · ·A· · I can't recall specifically how I used them,

·8· but if operating hours are 24 hours, then I would

·9· consider that in how it's compatible with surrounding

10· uses for the enjoyment and productivity of the

11· property.· So I can't -- I don't -- I can't recall

12· whether -- what those hours were or what it was, but I

13· do recall factoring those into my analysis, as I would

14· any zoning matter before the commission in Austin.

15· · · ·Q· · And all things being equal, is a 24-hour

16· operation less compatible with surrounding uses than,

17· say, an operation that has a normal Monday through,

18· Monday through Friday 8-to-5 schedule?

19· · · ·A· · That depends on the context.· If it's an

20· industrial park and they're all operating at 24 hours

21· surrounding you, then it is a compatible use.

22· · · ·Q· · Well, in this case.

23· · · ·A· · In this case, you know, the longer the -- the

24· more hours of duration throughout each day that the

25· use is, is, you know, is happening, then you, then you

·1· have to weigh that against, against its impact on

·2· other -- on surrounding properties.

·3· · · ·Q· · Because the longer the hours, the less

·4· compatible the use is?

·5· · · ·A· · Right.

·6· · · ·Q· · Okay.· And so did you factor in the waste

·7· acceptance rate in your land use analysis?

·8· · · ·A· · As to the waste acceptance rate?· No, I did

·9· not.

10· · · ·Q· · All right.· Does available capacity at other

11· nearby landfills factor into your land use

12· compatibility analysis?

13· · · ·A· · No, it doesn't.

14· · · ·Q· · What about the opinion or input from the

15· South Texas Regional Council, does that factor into

16· your land use compatibility analysis?

17· · · ·A· · No, it does not.

18· · · ·Q· · So if the local community doesn't believe

19· that this landfill is in compliance with a regional

20· solid waste plan, that does not factor into your

21· analysis?

22· · · ·A· · I'm just saying at the time that was a

23· decision that I wasn't aware of.· I'm not sure if it

24· was made since this time or before that, but that

25· wasn't a decision I was made -- I was aware of.· So if,

·1· if there was a planning council that decided this was

·2· not an appropriate location for the, for use and they

·3· decided that before this use was sited at this

·4· location, then I would factor that into my analysis.

·5· · · ·Q· · And how would that be factored into your

·6· analysis?

·7· · · ·A· · I would consider the community's -- basically

·8· it would function as a, as a future land use plan, in a

·9· way.· It wouldn't be an adopted future land use plan,

10· but it, it would be a -- it would evidence desire of

11· where to site them and where not to site them.

12· · · · · · · · ·And so at the time what I understood

13· was, Webb County had voted unanimously to site this

14· here, and that was the only jurisdictional decision

15· that had been made prior to the, prior to the siting

16· of the application or, or just after the siting of

17· the -- so the Regional Development Council I had not

18· known that, that they, you know, had, had areas that

19· they said were off limits or, or they wanted to site

20· these out.

21· · · ·Q· · So it's your understanding that Webb County

22· unanimously picked this location for the site --

23· · · ·A· · Not that they --

24· · · ·Q· · -- for the landfill?

25· · · ·A· · -- picked it.· It's just in the initial, in

·1· the initial round that's the only -- you know, in

·2· talking with the landowner, that was the only

·3· information from a jurisdictional entity that I

·4· understood at the time in going into the project that I

·5· can recall.

·6· · · ·Q· · That Webb County was in favor of this

·7· particular site for a landfill?

·8· · · ·A· · I think at the time it was cited, yes, in

·9· 2011.

10· · · ·Q· · But you've not reviewed the Webb County

11· siting ordinance; is that right?

12· · · ·A· · I have not.

13· · · ·Q· · Were you aware of that siting ordinance

14· before today?

15· · · ·A· · I understood that, I understand that there is

16· one.· I, I don't know if it was, it was in place before

17· my report, 2014.· So I can't say whether it was

18· available to me or not.

19· · · ·Q· · So in your report you have a, at the very

20· last page you've got this Appendix C.· You see that?

21· · · ·A· · Um-hm.

22· · · ·Q· · About the author?

23· · · ·A· · Yes.

24· · · ·Q· · Now, at the very bottom, the very last

25· sentence of that it says, "Mr. Rojas has recently

·1· provided expert witness services related to zoning,

·2· land use compatibility, and environmental impacts to

·3· the City of Cibolo, Texas and the country of Ecuador.

·4· Do you see that?

·5· · · ·A· · Yes.

·6· · · ·Q· · Okay.· When you say land use compatibility,

·7· was that something you provided related to landfills to

·8· the City of Cibolo?

·9· · · ·A· · No, I did not.· There are no landfills in the

10· City of Cibolo.

11· · · ·Q· · All right.· And was that something that you

12· provided with regard to landfills to the country of

13· Ecuador?

14· · · ·A· · No.

15· · · ·Q· · Okay.· And I thought you had told me

16· previously that you had not previously done a land, a

17· land use compatibility report like your Exhibit 22.

18· · · ·A· · Yes.· That was the first land use

19· compatibility report.· In this one I'm relating to a

20· zoning ordinance that I developed for the City of

21· Cibolo that was being challenged.

22· · · ·Q· · Okay.· So it's not the same type of study

23· that you have done here or that is required by TCEQ

24· rules?

25· · · ·A· · No.· Not the same study.

·1· · · · · · · · · · · MR. TOUGH:· Pass the witness.

·2· Thank you.

·3· · · · · · · · · · · MS. WILLIAMS:· Do you guys have a

·4· preference on how you want to proceed?· It is 5:21.

·5· · · · · · · · · · · MR. RICHARDSON:· I suggest we stop

·6· for the day.

·7· · · · · · · · · · · MS. WILLIAMS:· Okay.

·8· · · · · · · · · · · (At 5:21 p.m. the proceedings

·9· recessed.)

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·1· · · · · · · · · CHANGES AND SIGNATURE

·2· · PAGE· · · CHANGE· · · · · · · · · · · · REASON·3· _______________________________________________________

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·1· · · · · · I, _______________________________, have read

·2· the foregoing deposition and hereby affix my signature

·3· that same is true and correct, except as noted on the

·4· preceding page.

·5

·6

·7· · · · · · · · · · · · · ____________________________· · · · · · · · · · · · · · · · · ·GABRIEL ROJAS·8

·9· STATE OF TEXAS· · · · ·)· · · · · · · · · · · · · ·)10· COUNTY OF TRAVIS· · · ·)

11· · · ·Before me __________________________ (name

12· of officer) on this day personally appeared

13· __________________________, known to me (or proved to me

14· under oath or through _________________ (description of

15· identity card or other document)) to be the person whose

16· name is subscribed to the foregoing instrument and

17· acknowledged to me that they executed the same for the

18· purposes and consideration therein expressed.

19· · · ·Given under my hand and seal of office on this

20· ____ day of____________________, A.D., 2019.

21

22

23· · · · · · · · · · · · · ____________________________· · · · · · · · · · · · · · Notary Public in and for24· · · · · · · · · · · · · the State of Texas

25

·1· · · · · · · ·SOAH DOCKET NO. 582-18-3319· · · · · · · · TCEQ Docket No. 2013-1506-MSW·2

·3· APPLICATION BY RANCHO· · · § BEFORE THE STATE OFFICE· · VIEJO WASTE MANAGEMENT,· · §·4· LLC for MUNICIPAL SOLID· · §· · · · · ·OF· · WASTE PERMIT· · · · · · · ·§·5· NO. 2374· · · · · · · · · ·§ ADMINISTRATIVE HEARINGS

·6

·7· · · · · · · · ·REPORTER'S CERTIFICATION

·8· · · · · DEPOSITION OF GABRIEL ROJAS - VOLUME 1

·9· · · · · · · · · · ·January 25, 2019

10

11· · · ·I, Sandra S. Givens, Certified Shorthand Reporter

12· in and for the State of Texas, hereby certify to the

13· following:

14· · · ·That the witness, GABRIEL ROJAS, was duly sworn by

15· the officer and that the transcript of the oral

16· deposition is a true record of the testimony given by

17· the witness;

18· · · ·That the deposition transcript was submitted on

19· · · · · · · · ·, 2019 to the witness or the attorney for

20· the witness for examination, signature, and return to me

21· by· · · · · · · · , 2019;

22· · · ·That the amount of time used by each party at the

23· deposition is as follows:

24· · · ·Paul Tough - 1 hour, 37 minutes

25· · · ·That pursuant to information given to the

·1· deposition officer at the time said testimony was

·2· taken, the following includes counsel for all parties

·3· of record:

·4· · · · ·Dan Miller - Attorney for Hurd Enterprises, Ltd.·5· · · · · and Hurd Ranch Company, Ltd.· · · · ·Paul Touch - Attorney for Hurd Enterprises, Ltd.·6· · · · · and Hurd Ranch Company, Ltd.· · · · ·Paulina Williams - Attorney for Rancho Viejo Waste·7· · · · · Management, LLC· · · · ·Derek McDonald - Attorney for Rancho Viejo Waste·8· · · · · Management, LLC· · · · ·James M. Richardson - Attorney for The Jordan·9· · · · · Group and JEV Family, Ltd.· · · · ·Emily Gerald - Attorney for The Jordan10· · · · · Group and JEV Family, Ltd.· · · · ·Riley Brown - Attorney for The Jordan11· · · · · Group and JEV Family, Ltd.· · · · ·Leon V. Komkov - Attorney for ANB Cattle Co., Ltd.12· · · ·David Garcia - Attorney for ANB Cattle Co., Ltd.· · · · ·Marisa Perales - Attorney for SPILL13· · · ·Mary Whittle - Attorney for the Walker Group· · · · ·Joseph S. Cohen - Attorney for Job Partners14· · · ·J. Eric Magee - Attorney for Webb County· · · · ·Sheldon P. Wayne - Attorney for TCEQ15· · · ·Eli Martinez - Attorney for TCEQ

16· · · ·I further certify that I am neither counsel for,

17· related to, nor employed by any of the parties or

18· attorneys in the action in which this proceeding was

19· taken, and further, that I am not financially or

20· otherwise interested in the outcome of the action.

21· · · ·Further certification requirements, pursuant to

22· Rule 203 TRCP, will be certified to after they have

23· occurred.

24

25

·1· · · ·Certified to by me this 29th day of January 2019.

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·4· · · · · · · · · · · · Sandra S. Givens, CSR·5· · · · · · · · · · · Certification No. 5000· · · · · · · · · · · · Certificate Expires 12/31/19·6· · · · · · · · · · · U.S. LEGAL SUPPORT, INC.· · · · · · · · · · · · CRCB Firm Registration No. 10558·7· · · · · · · · · · · Austin Centre· · · · · · · · · · · · 701 Brazos Street, Suite 380·8· · · · · · · · · · · Austin, Texas 78701· · · · · · · · · · · · (512) 292-4249·9

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·1· · · · FURTHER CERTIFICATION UNDER RULE 203 TRCP

·2· · · ·The original deposition, or signature and errata

·3· pages from Volume 1 of the original deposition of

·4· GABRIEL ROJAS []was []was not returned to the

·5· deposition officer by· · · · · · · · · ·, 2019;

·6· · · ·If returned, the attached Changes and Signature

·7· pages contain any changes and the reasons therefor;

·8· · · ·If returned, the original deposition was delivered

·9· to Dan Miller, custodial attorney;

10· · · ·That $· · · · · · · is the deposition officer's

11· charges to the Respondent for preparing the original

12· deposition transcript and any copies of exhibits;

13· · · ·That the deposition was delivered in accordance

14· with Rule 203.3, and that a copy of this Certificate

15· was served on all parties shown herein and filed with

16· the Clerk.

17· · · ·Certified to by me this· · ·day of

18· 2019.

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21· · · · · · · · · · · Sandra S. Givens, CSR· · · · · · · · · · · · Certification No. 500022· · · · · · · · · · · Certificate Expires 12/31/19· · · · · · · · · · · · U.S. LEGAL SUPPORT, INC.23· · · · · · · · · · · CRCB Firm Registration No. 10558· · · · · · · · · · · · Austin Centre24· · · · · · · · · · · 701 Brazos Street, Suite 380· · · · · · · · · · · · Austin, Texas 7870125· · · · · · · · · · · (512) 292-4249