tjfaonline.com · HEARING ON THE MERITS SOAH DOCKET NO. 582-08-2186 TCEQ DOCKET NO. 2006-0612-MSW VOLUME 4 WEDNESDAY, APRIL 1, 2009 2 (Pages 563 to 566) Page 563 1 P R O C E E D I

HEARING ON THE MERITSSOAH DOCKET NO. 582-08-2186 TCEQ DOCKET NO. 2006-0612-MSW

VOLUME 4WEDNESDAY, APRIL 1, 2009

TRANSCRIPT OF PROCEEDINGS BEFORE THE STATE OFFICE OF ADMINISTRATIVE HEARINGS (TEXAS COMMISSION ON ENVIRONMENTAL QUALITY) AUSTIN, TEXAS

APPLICATION OF ) SOAH DOCKET NO.WASTE MANAGEMENT OF TEXAS, ) 582-08-2186INC., MSW PERMIT AMENDMENT ) TCEQ DOCKET NO.APPLICATION NO. 249D ) 2006-0612-MSW

HEARING ON THE MERITS WEDNESDAY, APRIL 1, 2009

BE IT REMEMBERED THAT AT approximately9:00 a.m., on Wednesday, the 1st day of April 2009,the above-entitled matter came on for hearing at theState Office of Administrative Hearings, 300 West 15thStreet, Hearing Room 404, Austin, Texas, before ROYSCUDDAY, Administrative Law Judge; and the followingproceedings were reported by William C. Beardmore, aCertified Shorthand Reporter of:VOLUME 4 PAGES 562 - 820



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1 P R O C E E D I N G S2 WEDNESDAY, APRIL 1, 20093 (9:00 a.m.)4 JUDGE SCUDDAY: I call to order Docket5 No. 582-08-2186. This is the third day of the6 hearing, and I believe the Applicant is ready to call7 their next witness. Is that correct?8 MR. RILEY: Yes, Judge. If I could just9 have one second. Thank you, Your Honor. At this

10 time, the Applicant calls John Worrall.11 (Witness sworn)12 JUDGE SCUDDAY: Please state your name13 for the record.14 WITNESS WORRALL: My name is John15 Worrall. It's spelled W-o-r-r-a-l-l. Can you hear me16 okay?17 JUDGE SCUDDAY: Yes. I think they'll18 let you know down there if they can't hear you.19 MR. RILEY: Your Honor, Mr. Worrall's20 testimony and exhibits have been previously offered21 and there have been objections and rulings on those22 objections and there are no changes to his testimony.23 So, at this time, we'd pass the witness24 for cross-examination.25 JUDGE SCUDDAY: Okay. Mr. Birch?

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1 MR. BIRCH: Thank you, Your Honor.2 PRESENTATION ON BEHALF OF3 WASTE MANAGEMENT OF TEXAS, INC. (Cont'd)4 JOHN WORRALL,5 having been first duly sworn, testified as follows:6 CROSS-EXAMINATION7 BY MR. BIRCH:8 Q Good morning, Mr. Worrall.9 A Hello, Mr. Birch.

10 Q How are you this morning?11 A Terrific. Thank you. How are you?12 Q I'm doing well. Thank you. Mr. Worrall,13 according to your resume, you've testified on land use14 issues at more than 20 solid waste facilities. Is15 that correct?16 A I'm not sure I've testified on that many, but17 it might be that many. But my resume would indicate18 those that I've worked on, whether I testified on them19 or not.20 Q So you've prepared land use analysis for over21 20 solid waste facilities?22 A Yes, sir. I think that's correct.23 Q And would your resume suggest that it's more24 like 30 facilities?25 A I think that's probably correct, yes.

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1 Q On any of those, have you ever represented a2 protestant in your land use analysis?3 A No, sir, I never have.4 Q Of those land use analyses that you've5 prepared, you said you've testified at about how many?6 A I'm going to estimate 15 or 20, I would say.7 Q And of those 15 or 20, were any of those8 applications ever ultimately denied by the commission?9 A Yes, sir, one of them was, to my knowledge.

10 It was called Spring/Cypress Landfill. It was a11 Type IV proposal in Harris County.12 Q Okay. And it was denied based on what13 reason?14 A I don't recall all the factors. The one that15 stands out prominently was that they sited some land16 use issues.17 Q When you do a review or when you did the18 review of the ACL facility -- let me back up for a19 moment. Were you here for Monday's testimony, by any20 chance?21 A No, sir, I was not.22 Q If we could just get some, real quick, ground23 rules as far as terminology. You know, the Austin24 Community Landfill or the Austin Community Recycling25 and Disposal Facility is the subject of this

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1 proceeding, and there's a number of ways referring to2 that -- Austin Community Landfill or ACL.3 When I refer to those names, can we4 agree that we're talking about the subject of this5 proceeding?6 A Yes, sir.7 Q And when we talk about the application or the8 permit amendment application or the amendment9 application, we're referring to this proceeding,

10 again, with the pending permit application?11 A Okay.12 Q And, also, if I refer to Waste Management of13 Texas or Waste Management or any of its affiliated14 entities, we're all referring to the Applicant in this15 proceeding. Can we agree to that?16 A Agreed.17 Q Now, in this matter, in the ACL proceeding,18 when you do your land use analysis, do you consider19 operational factors at the landfill?20 For example, do you consider whether21 there's any impact or birds are a problem with the22 facility?23 A Birds? Not specifically, no.24 Q Do you consider odor issues?25 A Yes, I do.



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1 Q Do you consider noise?2 A Yes, I do.3 Q And how do you consider those issues?4 A I look at them in the context of the land use5 rules that the TCEQ has promulgated and try to make6 determinations as to -- once I establish the7 fundamental land use issues to my way of thinking, I8 guess I would say, then I look at the operational9 issues as well to try to understand and make sure that

10 the landfill is performing as a -- well, just try to11 understand how the landfill is performing, I guess, is12 what I would say.13 Q Do you make any assumptions about how the14 landfill might be in compliance with these kinds of15 operational issues?16 A Yes, I do.17 Q And what's your assumption on those?18 A Well, my expertise is particularly land use,19 as you know. And in order to do a land use analysis,20 I typically will assume that areas of -- oh, what21 would I say -- expertise that I don't have -- let's22 just say groundwater or engineering issues that I23 don't possess that knowledge, I presume that the24 landfill will be operating in compliance with the TCEQ25 rules regarding all those other factors.

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1 Q Were you aware before -- I saw that you were2 sitting in the proceeding yesterday. Before3 yesterday, were you aware that there was an industrial4 waste unit as part of this municipal solid waste5 facility?6 A Yes, sir.7 Q Have you ever done a land use analysis for an8 industrial waste permit application?9 A No, I have not.

10 Q Have you ever done a land use analysis for a11 hazardous waste facility permit?12 A I have for a medical waste facility and I13 have for transfer stations, and I have for Type IV and14 Type I.15 Q Are those hazardous waste facilities?16 A I'm not so sure about the medical waste, how17 that's classified, but the other classifications are18 not hazardous waste.19 Q And when you're conducting your land use20 analysis when you did it for the ACL, did you talk to21 any of the neighbors that live in the vicinity of the22 facility?23 A No, I did not talk with them. I've, of24 course, attended various hearings. In fact, I think I25 saw you at one maybe a year or so ago where I heard

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1 public input, but I haven't specifically interviewed2 the neighbors.3 Q What about any representatives of the4 neighborhood associations? Did you talk to any of5 them?6 A No, sir.7 Q And there's a business by the name of the8 "Barr Mansion" located near the landfill. Did you9 interview any of the owners of the Barr Mansion?

10 A No, I did not.11 Q Thank you, Mr. Worrall.12 MR. BIRCH: Your Honor, I pass the13 witness.14 A Thank you, Mr. Birch.15 CROSS-EXAMINATION16 BY MS. COX:17 Q Hi, Mr. Worrall. My name is Annalynn --18 JUDGE SCUDDAY: You look surprised, like19 you weren't ready.20 MS. COX: Well, Mr. Birch said "short,"21 but I didn't expect it to be that short.22 (Laughter)23 Q (BY MS. COX) Mr. Worrall, my name is24 Annalynn Cox, and I represent Travis County in this25 matter. How are you today?

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1 A Terrific. Thank you. Would you repeat your2 last name for me, please?3 Q Cox.4 A Okay.5 Q And like Mr. Birch, I just want to make that6 you understand that if I refer to the ACL or the Waste7 Management Landfill or the Austin Community Landfill,8 I'm referring to the Austin Community Recycling and9 Disposal Facility that is owned and operated by Waste

10 Management of Texas.11 A Yes, ma'am.12 Q I have a couple of questions for you.13 There's a bunch of maps that were included in your14 land use analysis and several maps that were included15 as exhibits to your testimony. How did you create16 those maps?17 A Well, a variety of techniques, I guess I18 would say. It probably depends on the map in19 question.20 Q Well, if you wanted to, for instance, turn to21 APP-302, which is one of your exhibits, and turn to,22 let's say, Page 24 in there...23 A Yes.24 Q Okay. When you drew the long -- well, what25 was once a long rectangle of the Austin Community



4 (Pages 571 to 574)

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1 Recycling and Disposal Facility and now extends2 further to the left, how did you come up with the3 schematics of where exactly to place that landfill?4 A We obtained the CAD mapping -- the5 computer-aided drafting mapping -- from Mr. Dominguez6 from Golder Associates, and then we placed that on the7 aerial photograph that you can see -- that you can see8 here.9 Q And so you were relying on maps that were

10 created by Golder Associates?11 A The boundary map of the ACL facility, that's12 correct.13 Q And the area that's directly above the Austin14 Community Recycling and Disposal Facility, what is15 that?16 A The cross-hatched area in the lavender color,17 that's the Sunset Farms Landfill that's operated and18 owned by BFI -- now known as Republic.19 Q Okay. And beneath of the Austin Community20 Recycling and Disposal Facility, there's a gray21 cross-hatched area. Is that the closed Travis County22 landfill?23 A That's correct.24 Q Okay. And -- all right. When did you first25 start working for Waste Management?

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1 A I would say in the late 1980s.2 Q Have you prepared land use analysis for them3 before?4 A Yes, I have.5 Q Have you prepared land use analysis for this6 landfill before -- the ACL --7 A Yes, I did.8 Q How many times have you prepared land use9 analysis for them?

10 A Pretty much continuously, it seems to me, but11 jokingly. I prepared a land use analysis for the12 expansion of the ACL facility that, I'm going to say,13 occurred in 1990, which would have been the westward14 extension of the ACL.15 And then I prepared another land use16 analysis and a series of them, really, starting in,17 I'm going to say, 2004 in anticipation of being here18 today.19 Q If you prepared the analysis for 1990, would20 that have been the 249C application? Are you familiar21 with the numbers?22 A This is now 249D. I'm not sure of the23 designation, but it would be the prior expansion. So24 that's probably correct, yes --25 Q Okay.

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1 A -- 249C.2 Q Have you read anyone else's prefiled3 testimony that was prepared by Waste Management?4 A That was prepared by the Applicant? Is that5 what you mean?6 Q Was filed by the Applicant.7 A Yes, I've read parts of Mr. Dominguez's8 testimony. I've read Peter Boecher's testimony. I9 believe I've looked at excerpts of Mike McInturff's

10 testimony. And then I've also read the testimony of11 the protestants as well -- some of the protestants.12 Q You also testified on behalf of BFI in their13 recent hearing to expand the Sunset Farms Landfill.14 Is that correct?15 A That's correct.16 Q Are you familiar with the Austin Community17 Landfill's history?18 A Generally, yes.19 Q Well, you have been working for them since20 1990.21 A That's correct.22 Q And do you know when they first began23 accepting waste?24 A I believe it was in the -- I'm going to say25 the mid-seventies.

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1 Q Did you read the site history that was2 included in the application?3 A I remember very -- yes, I did. More4 specifically I was referring to some of the site5 history and prepared my own site history, you might6 say, as a result of the 249C application and had7 referred back to that as well to prepare my own brief8 site history that was included in my report.9 Q Are you aware of when land filling operations

10 first began on this area? Would that be the same,11 since 1975?12 A If I might, I'll refer to my --13 Q Certainly.14 A -- report, which is APP-302. My version of15 the history, if you will, is contained on Page 4 of16 that. And in that I indicate -- it's kind of the17 third indented paragraph down -- that, according to my18 notes, in 1974 it began operation -- the ACRDF. Do19 you see that?20 Q I do. And in the first paragraph -- indented21 paragraph -- it says that "in 1968" --22 A Yes.23 Q -- "the Precinct 1 site began operating as a24 landfill immediately south of the existing ACRDF25 site." That's what's commonly referred to as the



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1 "Travis County closed landfill?"2 A Yes, ma'am.3 Q And then the second indented paragraph, you4 say, "In 1982, the Sunset Farms Landfill started5 operating?"6 A Correct.7 Q Are you aware of the industrial waste unit8 that was operated on what's now known -- located on9 the ACRDF landfill? Were you aware that that

10 industrial waste unit began operating in 1970?11 A No, I was not aware of that.12 Q I believe Mr. Birch asked you already13 whether -- and you stated that you had made the14 assumption that Waste Management would be following15 all of TCEQ's rules and regulations when operating16 their landfill?17 A In all aspects. I would hold that -- I guess18 the way I would describe it, if I might, is, I hold19 those to be a constant or a -- I guess a constant. In20 other words, that I presume that it will be compliant21 with all the engineering and technical aspects, and22 then that's the basis upon which I premise my land use23 analysis.24 Q If hypothetically Waste Management were not25 operating according to those rules and regulations,

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1 and if they were hypothetically operating the landfill2 in a manner that created a nuisance for the3 surrounding residents, would this still be a4 compatible land use?5 A I would say that hypothetically -- well, I6 don't think I have a simple answer for that. I don't7 know --8 Q Well, why not?9 A -- if I can give you a "yes" or "no" on that,

10 really.11 Q Well, if hypothetically a landfill is12 operating in a manner that does not comply with the13 rules and regulations, would that be a nuisance for14 the surrounding land use?15 A Thank you for clarifying that. It may or may16 not be. In other words, it could be not complying in17 ways that do not create a nuisance.18 Q If it were hypothetically not complying in a19 way that smells -- the odors were of such a level that20 they were a nuisance odor, would that be an21 incompatible land use?22 A It could be.23 Q That's your expert opinion?24 A Yes, ma'am.25 Q When -- if it could be, when would it not be?

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1 A Well, it would not be if, for instance, it2 would be creating nuisance odors, hypothetically, and3 there are no sensitive receptors nearby to respond to4 those odors, for instance.5 Q So if, hypothetically, there are sensitive6 receptors nearby, it would then be an incompatible7 land use?8 A Hypothetically, it could very well be.9 Q If, hypothetically, the smells were so strong

10 that children could not play outside at a local school11 that's located nearby this landfill, would that be12 incompatible?13 A It would certainly be a factor in considering14 that, yes.15 Q If, hypothetically, the noise from trucks16 coming to and from the landfill were so loud that it17 prevented children from being able to sleep at night,18 would that be an incompatible land use?19 A Hypothetically, it could be.20 Q If, hypothetically, trash was blowing from21 the landfill onto neighboring properties, would that22 be an incompatible land use?23 A Well, it would depend on what those24 neighboring properties' situation was, I guess I would25 say. In this case, of course, I realize we are

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1 talking hypothetically, but let's say hypothetically2 you had a landfill right next to this situation, they3 may not be that concerned about it, as an example.4 Q Fair enough. If, hypothetically, there were5 residences located near the landfill and trash was6 blowing from the landfill onto those residences, would7 it be an incompatible land use?8 A It could be, yes.9 Q And if, hypothetically, trash was blowing

10 from trucks going to and from this landfill and onto11 neighboring residences, would that be an incompatible12 land use?13 A It could be.14 Q Did you look into Waste Management's15 compliance history to see if there had been any16 reports of any of these types of nuisances happening17 before you made your land use analysis?18 A Well, I'm generally aware of the operations19 there and the fact that there have been odor20 complaints in the past. I do know, as a matter of21 fact, that Waste Management has attempted to respond22 to those concerns and it's also been the focus of a23 settlement agreement as well.24 As far as litter and blowing trash you25 talk about, I know that Waste Management has, as does



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1 BFI next door, litter control measures in place. So2 I'm aware of the issues that you describe, and I'm3 also aware of attempted remedial measures, if I can4 call them "remedial" -- I'm not sure that's the exact5 word -- but mitigate of measures that have been taken6 to respond to those concerns.7 Q Okay. Let me just ask once again, because8 you said that you're generally aware. But did you9 actually do any research into their compliance

10 history?11 A Not specifically their compliance history.12 However, as a result of this land use analysis and as13 a result of my working in this field over the years,14 I've certainly been out to the area, I would say, on15 the order of 50 times probably in the last decade.16 MS. COX: Objection, nonresponsive.17 JUDGE SCUDDAY: Sustained. Just answer18 the question she asked.19 A Okay. Would you mind repeating it for me one20 more time?21 Q (BY MS. COX) Did you do any research into22 Waste Management's compliance history?23 A No.24 Q Now, you said a couple of things that were of25 interest. You said that you were aware of a

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1 settlement agreement?2 A I think that's the word I used. I'm not sure3 that's the term of art. It's an agreed order.4 Q Okay. And would that be the 2004 agreed5 order between the TCEQ and Waste Management?6 A Yes, and I did review that.7 Q I believe Mr. Birch asked you if you had8 spoken with any of the neighbors who lived near the9 landfill?

10 A He did.11 Q And that you stated you had not spoken with12 any of them about any of their concerns regarding13 noise?14 A I did not interview the neighbors.15 Q Were you present at any public meetings where16 the neighbors spoke?17 A Yes, I was.18 Q Which meetings were those?19 A I believe the one that I can recall very20 specifically was a TCEQ mandated public hearing or21 public meeting, I guess you would say -- public22 meeting -- at a local civic facility. I can't23 remember if it was a school, perhaps, or -- anyway,24 that was about a year ago. That's the one I remember25 specifically.

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1 Q Would that have been the public hearing in2 April of 2008?3 A Yes, that sounds correct.4 Q And --5 A And then I also heard the neighbors speak a6 number of times at Travis County hearings and meetings7 at the Travis County Courthouse as well.8 Q Would these be the meetings before the Travis9 County Commissioners' Court?

10 A That's correct.11 Q And were you actually present at those12 meetings?13 A Yes, I was.14 Q Because I only ask because you can watch them15 over the television.16 A No, I was present at several of them, and I17 don't have a television.18 Q And did you speak at the meetings?19 A In some cases, I did, yes.20 Q Are you aware of the fact that Travis County21 takes the position that this landfill is not a22 compatible land use?23 A I'm aware that Travis County is generally24 opposed to the expansion.25 Q Are you aware that Travis County takes the

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1 position that this is not a compatible land use?2 A I'm not sure if I know that or not, I guess.3 Q Are you aware of the fact that the City of4 Austin takes the position that this is not a5 compatible land use?6 A Yes, I do know that.7 Q I asked you before if you had done any8 research into the complaints that were filed by the9 neighbors, and you state that you had done -- you had

10 heard from the folks at Waste Management that there11 were some complaints.12 A No. I believe what I said was that I heard13 those complaints at the public hearing, is what I14 meant to suggest.15 Q Did anyone at Waste Management ever tell you16 that there had been complaints filed with the TCEQ?17 A Yes, I believe they did.18 Q And did they ever tell you about complaints19 that were filed directly with Waste Management?20 A I didn't really inquire as to where the21 complaints were filed. I guess I was aware of those22 that were filed with TCEQ. I can't recall if I23 specifically heard of complaints that were registered24 directly with Waste Management themselves.25 Q Have you read any of the complaints that were



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1 sent to anyone?2 A Not in this case, no.3 Q But you have read other complaints?4 A Yes.5 Q And would that be in the BFI case?6 A Yes, ma'am.7 Q Did BFI provide you with copies of those8 complaints?9 A I believe their attorneys did, yes.

10 Q Did Waste Management provide you with copies11 of complaints?12 A Not that I recall, no.13 Q Did you ask them if there were any14 complaints?15 A I just -- as I said, my analysis and16 examination of the complaints was limited to the17 agreed order that we talked about earlier.18 Q Did Waste Management ever -- let me rephrase19 that. Are you aware of the number of complaints that20 have been filed?21 A No, I'm not, not off the top of my head.22 Q If, hypothetically, hundreds of complaints23 had been filed, would that make an impact on your land24 use analysis?25 A Well, my land use analysis as regards this

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1 one aspect that we're talking about consisted of2 examining the agreed order very specifically and3 trying to understand what the basis for those4 complaints would be vis-a-vis the TCEQ's analysis of5 them.6 So I relied on that agreed order and the7 TCEQ's analysis of the odor complaints.8 MS. COX: Objection, nonresponsive.9 JUDGE SCUDDAY: I think he tried to

10 answer your question.11 Q (BY MS. COX) So the fact that,12 hypothetically, hundreds of complaints may have been13 made would not have impacted your land use analysis?14 MR. RILEY: Objection, "the fact that15 hypothetically"...16 MS. COX: I'll withdraw. I'm sorry.17 JUDGE SCUDDAY: If there had been 10018 complaints filed, would have that affected your19 analysis?20 A Not necessarily.21 Q (BY MS. COX) If there had been 1,00022 complaints filed, would that have affected your23 analysis?24 A I don't think there's a threshold number of25 complaints that would affect my analysis. You have to

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1 look at a number of other factors, I guess I would2 have to say.3 Q And what do you mean when you said that it4 would not necessarily affect your analysis? Would it5 simply be that you would have to look at the other6 factors?7 A That's partly it. And I would say, based on8 my experience, that I have yet to work on a project9 that people don't complain about. So I presume that

10 people are going to complain about the landfill and11 the expansion.12 It's, you know, kind of a joking term of13 art. It's a lulu. It's a locally unwanted land use.14 It would be a rare landfill that generate complaints.15 So I don't find it to be -- I think the word might be16 "dispositive."17 Q Do you presume that the complaints are valid?18 A I presume that they're present -- that they19 exist.20 Q Do you presume that they're valid?21 A I presume that people -- well, yeah, I22 presume they're valid. Sure.23 Q You say that you presume that there are going24 to be complaints with every landfill, and correct me25 if I'm rephrasing it incorrectly. So the fact that

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1 one landfill might have more complaints than other2 landfills wouldn't make you want to question those3 complaints a little bit more?4 A Well, there's a lot of other factors in it,5 for instance. In this case, we've seen that there's6 been tremendous growth in the area, you know, as I7 indicate in my testimony.8 If we did nothing other than have9 complaints that were valid and what have you, as we

10 talked about, and would increase at the same rate as11 the population, I would think that that would be what12 I might expect.13 So I don't think that there's a14 threshold number of complaints or a trend on15 complaints that would affect my notion of16 compatibility. There's just so many different17 circumstances.18 Q Are you aware of the problems with odors at19 both the Waste Management and the BFI landfill in the20 2001 and 2002 time frame?21 A I am. One of the issues that I'm aware of is22 that it's been hard to figure out what the source of23 those odors might be, and it may be sources other than24 the two that you've stated. But I'm aware of it, yes.25 Q And are you aware that the -- well, where do



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1 you believe those odors might have come from if it2 wasn't from those two landfills?3 A Well, if we look at the land uses in the4 vicinity, we've got the closed landfill that we just5 talked about in Travis County that you referred to as6 the Travis County landfill to the south.7 We've got -- further south of that we've8 got a pipeline in oil and gas storage facilities to9 the south of 290. You've got numerous urban detention

10 ponds in the area that could very well be the source11 of odors.12 You've got agricultural activities in13 the area that could be the source of odors. You've14 got Applied Materials, a large industrial facility,15 across the way that might be a source of odors.16 So we're in an urbanizing area, and17 might be any number of odor sources here. I certainly18 would think that the landfills would be obvious places19 to look for the sources, though.20 Q Were you aware that the TCEQ formed what they21 called a "strike team" in this time frame to22 investigate the source of the odors?23 A No, I did not know that.24 Q Were you aware that the TCEQ had made a25 finding that the source of the odors came from the

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1 landfills?2 A From --3 Q From -- it was -- were you aware that they4 determined that it came from the area of the5 landfills?6 MR. RILEY: I'm going to object because7 the question is just so vague. Is there a particular8 incident that is being asked about, or --9 JUDGE SCUDDAY: Are you referring to a

10 specific report?11 MS. COX: I'm referring to the TCEQ12 strike team report from 2002.13 JUDGE SCUDDAY: Ask him if he's familiar14 with it.15 Q (BY MS. COX) And are you familiar with that16 report?17 A No, ma'am, I'm not.18 Q Would it surprise you to learn that they had19 made a finding that the odors -- would it surprise you20 to learn that in that report they had made a finding21 that the odors came from either the BFI or the Waste22 Management landfill?23 A No, that wouldn't surprise me, I don't think.24 Q No one at Waste Management ever told you that25 there had been a strike team that had been formed by

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1 the TCEQ?2 A Not that I recall, no.3 Q Would knowing that have been important in4 making your land use analysis determination?5 MR. RILEY: I'm going to object again,6 Judge. If there's such a report and if there indeed7 was such a team formed, that's not been proven in this8 case and it's not been offered into evidence.9 JUDGE SCUDDAY: Sustained.

10 Q (BY MS. COX) Mr. Worrall, you mentioned11 earlier that you had read through the 2004 order --12 agreed order?13 A Yes, ma'am.14 Q And did you read the specifics on the15 violations that were alleged against Waste Management16 in that order?17 A Well, I read the order itself. And then the18 other thing associated with it that I read was the19 penalty calculation, I think it's called.20 Q Did you do any research into whether or not21 the issues that were alleged in that agreed order have22 been taken care of or resolved?23 A I talked with the people at Waste Management,24 and I've also -- and asked them about responses to25 that, but more specifically, the order itself

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1 outlines, as I recall, the Applicant's response to2 that order or those issues and their mitigative3 actions as a result of it.4 Q And did you talk with anyone at Waste5 Management about those specific allegations that were6 raised in the order?7 A No. I just took the order at face value, I8 guess I would say.9 Q Did you talk with them to find out if they

10 were operating their landfill in a manner that was11 consistent with the rules and regulations of the TCEQ?12 A Not specifically. No, I didn't ask them13 that.14 Q And you don't believe it would be important15 to find out if a landfill was operating in a legal16 manner before making a land use determination?17 A Well, as I said before, my presumption is18 that they are operating per the rules and regulations19 of the TCEQ, and I used that as a basis to do my land20 use determination.21 So I guess I would just have to22 reiterate that answer.23 Q Are you familiar with CAPCOG?24 A I'm sorry. Repeat it.25 Q Are you familiar with CAPCOG?



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1 A Yes, I am.2 Q Are you familiar with their Regional Solid3 Waste Management Plan?4 A Yes, I am.5 Q Have you had any contact with CAPCOG6 concerning this application?7 A Not that I recall; not this application, no.8 Q Have you had any contact with CAPCOG at all?9 A Yes, I have.

10 Q And was that in regards to Waste Management?11 A Not that I recall, specifically. The contact12 that I've had that I recall best specifically had to13 do with the landfill proposal to the north, the BFI14 landfill.15 Q Were you aware that CAPCOG had made the16 determination that Waste Management's proposed17 expansion does not conform with current and future18 land use in the area?19 A Yes, I saw that letter nonconformance.20 Q You originally did this land use analysis in21 January of 2005. Is that correct?22 A That's correct.23 Q And you revised it then on September 6, 2006?24 A That's correct.25 Q And again December 5, 2008?

Page 592

1 A Yes, ma'am.2 Q Were you aware at the time of your revision3 of September 6, 2006 that CAPCOG had already made the4 finding that this landfill did not conform to the5 Regional Solid Waste Management Plan?6 A I don't recall if I knew that at the time or7 not. CAPCOG's ruling was not related to these8 revision dates that we're talking about.9 Q You can't recall if anyone had told you that

10 the land use analysis that you had performed had been11 deemed by CAPCOG to not conform to their Regional12 Solid Waste Management Plan?13 A Well, I don't know who told me that. But, I14 mean, at some point I became aware that CAPCOG had15 issued a letter of nonconformance.16 Q Were you aware of it by December 5, 2008?17 A Let's see -- I don't recall. I don't think18 CAPCOG's findings played a very important role in my19 land use analysis.20 Q And why not?21 A Because I don't think that they have examined22 it nearly as carefully as I have. It's just not a23 factor in my analysis.24 Q Do you recall testifying in the BFI hearing25 in January of this year?

Page 593

1 A Repeat your question, please.2 Q Do you recall testifying in the BFI hearing3 in January of this year?4 A Do I recall testifying? Yes.5 Q Yes. Do you recall being asked questions6 about CAPCOG in that hearing?7 A I don't right off the top of my head, but I8 bet you could remind me otherwise.9 MS. COX: Can I approach the witness,

10 Your Honor?11 JUDGE SCUDDAY: Yes.12 Q (BY MS. COX) Mr. Worrall, if you can please13 start reading on Page 1136 the question.14 MR. RILEY: I'm going to object. Having15 seen the question and answer that counsel is going to16 direct the witness's attention to, it's actually a17 much longer subject matter.18 So I think in fairness, you ought to be19 able to review more of the transcript than he's just20 going to be -- than just going to be pointed out. It21 seems as though it's a long series of questions and22 objections and rulings, and I've only had a second to23 look at it.24 So I object to it as being out of25 context of the discussion of this case.

Page 594

1 JUDGE SCUDDAY: Do you want to -- if2 you're going to ask him about what he said, I think3 you need to make sure it's in context. Have you got4 the whole thing or just that one instance?5 MS. COX: I have his entire testimony.6 I was just trying to shorten it for the Court.7 JUDGE SCUDDAY: Oh, I understand, but I8 think he ought to at least be allowed to look at it.9 MS. COX: Okay. Certainly.

10 A Ms. Cox, can you tell me where you're going11 to ask me to read from out of context so I can get12 context?13 Q (BY MS. COX) Certainly. This question and14 this answer (indicating).15 A Starting here and going down (indicating)?16 Okay. Thank you. Well, it's kind of disheartening to17 read one's testimony --18 (Laughter)19 A -- but I would be happy to -- do you want me20 to begin to read the testimony, as you're suggesting21 here?22 MR. RILEY: Actually, I'm going to23 object to reading the testimony. Is there something24 that's being offered here?25 JUDGE SCUDDAY: Yeah, ask him the



10 (Pages 595 to 598)

Page 595

1 specific -- specifically what you want him to look at.2 MS. COX: Your Honor, I specifically3 wanted the witness to read his statement in the BFI4 hearing and comment on that.5 MR. RILEY: Again, it's a -- it's a6 transcript from another proceeding that is quite7 lengthy -- I only had a moment to look at it -- that8 the witness is going to be asked to read from. It's9 not in evidence, nor do I think it could be placed in

10 evidence.11 If there's something inconsistent about12 that statement that counsel wants to ask the witness13 about, then I think that's appropriate.14 JUDGE SCUDDAY: That's the way you need15 to do it, is to ask him if he made the statement -- if16 he made a specific statement and then ask him to17 explain if there's an inconsistency.18 MS. COX: Okay. If I can just get my19 copy of the transcript back. I'm sorry.20 JUDGE SCUDDAY: Okay.21 Q (BY MS. COX) Mr. Worrall, in the BFI hearing22 were you asked regarding the -- you were asked about23 the CAPCOG letter and the findings that they made24 regarding the BFI landfill expansion. Correct?25 MR. RILEY: Okay. Just for clarity, are

Page 596

1 we talking about another CAPCOG letter that's also not2 in evidence?3 JUDGE SCUDDAY: Are we talking about4 this CAPCOG letter?5 MS. COX: No, we're talking about BFI.6 JUDGE SCUDDAY: Okay. So your question7 is about a different CAPCOG letter.8 MS. COX: No. My question is about the9 prior inconsistent statement. He's answered that

10 question in regards to the importance of CAPCOG.11 JUDGE SCUDDAY: But you're asking him12 if -- he was answering a question then regarding13 another CAPCOG letter?14 MS. COX: That's correct.15 JUDGE SCUDDAY: A different CAPCOG16 letter?17 MS. COX: That's correct, Your Honor.18 JUDGE SCUDDAY: So your question is, was19 he asked about a different CAPCOG letter regarding BFI20 that he made in his answer about the importance of21 CAPCOG? Is this where we're going?22 MS. COX: That's correct, Your Honor.23 JUDGE SCUDDAY: Okay.24 MR. RILEY: Judge, as long as we're25 clear that it's a different CAPCOG letter and it

Page 597

1 relates to another facility, I withdraw my objection.2 JUDGE SCUDDAY: Go ahead. Just make3 sure we understand that you're not -- it wasn't about4 this CAPCOG letter.5 MS. COX: No. And I'm sorry for any6 confusion. I am specifically referring to the letter7 from CAPCOG to the BFI concerning BFI.8 JUDGE SCUDDAY: Okay.9 Q (BY MS. COX) And you answered, "It's the --

10 well, as it says, it's the Advisory Committee that11 says that and the thing that was more to the point as12 far as I was concerned is that the executive committee13 of CAPCOG said it will conform to their Regional Solid14 Waste Management Plan, and that was the thing that I15 found of most interest."16 In this proceeding you believe --17 MR. RILEY: Objection.18 JUDGE SCUDDAY: Which proceeding?19 Q (BY MS. COX) I'm sorry. In the BFI20 proceeding, you believed that the finding of CAPCOG,21 that the BFI landfill conformed to the Regional Solid22 Waste Management Plan was of interest. Correct?23 MR. RILEY: Objection, it24 mischaracterizes that exchange. He said "of most25 interest" in the letter -- the CAPCOG letter in the

Page 598

1 BFI proceeding. That was the most interesting2 portion.3 JUDGE SCUDDAY: Ms. Cox, you're going to4 ask him about his position on CAPCOG. And as I assume5 you're asking him about the inconsistency and his6 position in the BFI case and this case. Is that7 right?8 MS. COX: That's correct.9 JUDGE SCUDDAY: Is that where you're

10 going with that? Okay. So what was the question that11 he was asked?12 MS. COX: The question that -- it13 states, "Are you aware that the solid waste advisory14 council of CAPCOG in this letter adopts the comments15 of Travis County whereby Travis County makes a finding16 that in their view the facility will not conform with17 current and future land use in that area."18 JUDGE SCUDDAY: Okay. I don't see how19 that -- that's Travis County. The question is about,20 was he aware of Travis County's comment.21 MS. COX: His response was about CAPCOG.22 JUDGE SCUDDAY: Okay. What was his23 response? Read his response.24 MS. COX: His response is, "Well, as it25 says, it's the advisory committee that says that. And



11 (Pages 599 to 602)

Page 599

1 the thing that was more to the point as far as I was2 concerned is that the Executive Committee of CAPCOG3 said it will conform to their Regional Solid Waste4 Management Plan, and that was the thing I found of5 most interest."6 JUDGE SCUDDAY: Now, ask your question.7 Q (BY MS. COX) How do you reconcile your8 statement in the BFI proceeding with what you've told9 us today?

10 A It doesn't seem like it requires11 reconciliation to me from my perspective. There are12 two different -- it's CAPCOG -- the same agency.13 There's two different letters, as we've established,14 and we've got two different permit applications.15 So it doesn't strike me on the face of16 it that there's anything that requires reconciliation17 there unless I'm missing -- well, clearly, I guess I'm18 missing your point and I apologize.19 Q Are you not equally concerned about what20 CAPCOG has said about Waste Management's21 nonconformance to the Regional Solid Waste Management22 Plan?23 MR. RILEY: Objection. It assumes that24 the question and answer counsel has read gives any25 commentary on the significance of CAPCOG, which I

Page 600

1 disagree with, in the context that counsel --2 JUDGE SCUDDAY: I don't think you really3 set the basis. You haven't established the foundation4 for where you're trying to go, if I understand where5 you're trying to go.6 MR. RILEY: May I just add one thing,7 Judge? It seems as though -- and I'm really not8 familiar with this circumstance. It seems as though9 an advisory committee agreed with Travis County's

10 determination of nonconformance, but an executive11 committee overruled the advisory committee. At least12 that's what I picked up in the answer.13 JUDGE SCUDDAY: Which is not the case in14 our case. Right?15 MR. RILEY: Not as far as I know. But,16 again, we're hoping to have some evidence here.17 JUDGE SCUDDAY: I'm not trying to make18 this more difficult for you, Ms. Cox. You need to go19 about it the right way.20 Q (BY MS. COX) Mr. Worrall, do you recall the21 prefiled testimony that you prepared for the BFI22 hearing?23 A It's like a movie within a movie a little24 bit. I mean, I'm doing all I can to remember my25 testimony in this case, frankly. Yeah, I guess I

Page 601

1 remember it. Let's just say I do. Sure.2 Q Okay. Would seeing a copy of it help refresh3 your recollection?4 A I'm sure it would, but the movie would5 continue, I'm afraid.6 MR. RILEY: Again, I would ask that the7 witness be given an opportunity to review the context8 of the question and answer.9 JUDGE SCUDDAY: I assume that's what

10 he's doing.11 A I've read the -- Ms. Cox, I've read the Q&A12 as it relates to the Regional Solid Waste Management13 Plan in my prefiled testimony.14 Q (BY MS. COX) Do you recall being asked a15 series of questions after having read this about16 whether or not the BFI expansion conformed with the17 CAPCOG Regional Solid Waste Plan?18 A Well, what I just read was my prefiled19 testimony -- correct? That wasn't the transcript?20 Q That's correct.21 A And then you just, before that, showed me my22 testimony. So, yeah, I recall it.23 Q I'm sorry. When I say "your testimony," I'm24 referring to your prefiled testimony.25 A Okay. And so would you repeat your question

Page 602

1 for me in that context?2 Q Do you recall being asked as to whether or3 not you had investigated whether the proposed4 expansion of the BFI landfill was compatible with5 CAPCOG's Regional Solid Waste Plan?6 MR. RILEY: Objection. There's a7 particular question and a particular answer, and I8 think that's, perhaps, the way to approach this line9 of inquiry.

10 JUDGE SCUDDAY: Okay. This is in his11 prefiled testimony? What was the question?12 MS. COX: The question in the prefiled13 testimony is, "Have you investigated whether the14 proposed expansion of the landfill is compatible with15 the CAPCOG Regional Solid Waste Plan?"16 JUDGE SCUDDAY: What's the answer?17 MS. COX: "I have." Then the following18 question is, "What did you conclude?" And the answer19 is, "The expansion of Sunset Farms is consistent with20 the Regional Solid Waste Management Plan and CAPCOG21 has issued a conditional conformance letter to the22 effect.23 "A copy of CAPCOG's conditional24 conformance letter and a copy of BFI's response to25 that letter has been previously marked and offered as



12 (Pages 603 to 606)

Page 603

1 Applicant's Exhibits RS-32 and RS-33 respectively."2 JUDGE SCUDDAY: Okay. Now, ask your3 question.4 Q (BY MS. COX) Mr. Worrall, in the BFI5 proceeding you did an investigation into their6 expansion and to whether or not that expansion7 conformed with CAPCOG's plan.8 A I don't think that's an entirely accurate9 representation of what I did, but I would happy to

10 tell you what -- offer up what it is I did there.11 Q Well, your testimony states that you did do12 it. Correct?13 A Well, it states what it states.14 Q Is your prefiled testimony inaccurate?15 A Oh, no, I don't believe it is. I just think16 you're not characterizing it the way that I would.17 That's all.18 Q Well, when the question says, "Have you19 investigated whether the proposed expansion of the20 landfill is compatible with the CAPCOG Regional Solid21 Wast Plan?"22 A And what was my answer, please?23 Q "I have."24 A Okay. And I investigated it to the extent25 that I understood that we had gotten and I reviewed

Page 604

1 and saw a conditional conformance letter from CAPCOG.2 And there's not much more to do at that3 point, because you now have a conformance letter from4 the CAPCOG, and it's not really a fruitful area of5 investigation once you know that.6 Q Did you perform a similar investigation into7 Waste Management?8 A Yes.9 Q When was that?

10 A Well, within the last couple of months, I11 would say, in preparation for this hearing.12 Q But not before you prepared your land use13 analysis?14 A No, not before I prepared it. No.15 Q And not before you amended that land use16 analysis December 5, 2008?17 A Well, as I testified before, I don't recall18 if it was before or after that.19 Q Do you have any understanding about why20 CAPCOG gave conditional approval to BFI but not to21 Waste Management?22 A Well, that's had a complicated question.23 But, yes, I think I've got some understanding of it.24 Q What is your understanding?25 A Your question to me, if I might rephrase it,

Page 605

1 is to say, do I understand why BFI might have gotten a2 conditional conformance letter and Waste Management3 did not.4 Q About why CAPCOG granted conditional approval5 to BFI but not to Waste Management, yes.6 A Well, this requires some insights into the7 thinking of a --8 Q Well, did you read the letters that stated9 why they were conforming?

10 A Yes.11 Q What did those letters tell you?12 A Well, to summarize, the BFI one -- is that13 the one you want to talk about, or do you want to talk14 about Waste --15 Q Let's talk about the BFI one.16 A Okay. My understanding very simply of it,17 without reviewing that letter again, is that they18 offered a conditional conformance letter -- they19 issued a conditional conformance letter because -- and20 this is my understanding -- BFI, among other things,21 agreed to cease accepting solid waste in November of22 2015, and I think that placated Travis County and I23 think it placated CAPCOG.24 Q And what is your understanding based on your25 reading of the letter as to why CAPCOG denied Waste

Page 606

1 Management's --2 A May I refer to the letter?3 Q Certainly.4 A Okay. I think I've got one here.5 Q Okay. If not, it's --6 JUDGE SCUDDAY: It's City No. 2 or JW-5.7 A I've got an exhibit here that's COA-2. Would8 that be the --9 Q (BY MS. COX) Yes.

10 JUDGE SCUDDAY: That's it.11 A Okay. CAPCOG has listed some six pages of12 reasons why they ruled that this was not in13 conformance with the Regional Solid Waste Plan.14 However, of those six pages of reasons,15 it strikes me as they boil down to about three or four16 that are reiterated over and over again.17 Q (BY MS. COX) What are those three or four18 reasons that you believe it boils down to?19 A Well, one reason that occurs over and over20 again is -- if you'll give me just a moment to make21 sure I'm going to characterize this correctly. You're22 asking me -- if I might, to rephrase it again -- to23 give the reasons why CAPCOG has presumably found this24 to be a nonconformance. Is that correct?25 Q That's correct.



13 (Pages 607 to 610)

Page 607

1 A Okay. Well, as I said, we see these reasons2 appearing over and over in these six pages. The first3 reason or the type of reason, I will say, is they say4 first of all that -- and I'm reading on Page 1 of5 Exhibit COA-2 -- and this is their conformance6 determination, being CAPCOG's conformance7 determination -- they say, "TCEQ assessed the8 Applicant the highest fine ever assessed to an MSW9 operator. Okay. That's one reason they've given

10 here.11 And as you track through that, you can12 see that same reason occurs at the top of Page 2, in13 the middle of Page 2. You can see on Page 4 that that14 reason appears again. So that's the first set of15 reasons they give.16 Q Let me draw your attention to the first page17 of that exhibit that you're looking at, with the18 April 10, 2008 letter.19 A Do you want me to -- I didn't fully answer20 your question, I don't think. In other words, you21 asked me about these types of reasons, and I'm --22 Q Well, I'm going to -- let's look --23 JUDGE SCUDDAY: Let him answer the24 question you asked.25 MS. COX: All right. Certainly.

Page 608

1 A Okay. So that's a bullet here that we see2 occurs over and over again. The next bullet we see3 that I think occurs more than once, it says, "Adjacent4 landowners will suffer visual, olfactory and other5 impairments to the use and enjoyment of their private6 property rights from the expansion of the landfill."7 That's on Page 1. That's the only time that appears.8 So that's a unique one.9 If I go to Page 2 now, the bulleted

10 answer is, "The facility is within the desired11 development zone of the city of Austin and is adjacent12 to numerous homes, schools, historic sites and other13 sensitive receptors." That answer or some version of14 it appears again on Page 3 and on Page 5.15 And then there's a series that I would16 conclude with by saying -- that the answer says, "The17 Applicant has not provided the document required by18 Section 2.8 of the checklist." In another place it19 says, "2.2 of the checklist." In another place it20 says, "2.13 of the checklist."21 So all I mean to suggest -- another one22 says "2.15." What I mean to suggest is that they give23 six pages of reasons that I think consist of about24 four or five answers used repeatedly. Thank you for25 allowing me to answer that.

Page 609

1 Q No problem. Drawing your attention to the2 first page of City of Austin Exhibit 2, they list3 three specific factors that are the reason that they4 have denied conformance with the Regional Solid Waste5 Management Plan. Is that correct?6 A I don't see the three that you're referring7 to, no, ma'am.8 MR. RILEY: Page 1, I think -- numbered9 Page 1.

10 JUDGE SCUDDAY: The April 10, 200811 letter.12 MR. RILEY: It's actually the cover13 letter. Page 1 is the --14 A Oh, I'm sorry. When I was referring to my15 page numbers, it was in the body of the letter.16 JUDGE SCUDDAY: I understand. I know.17 A And now you are referring me to the cover18 letter. Is that correct?19 Q (BY MS. COX) That's correct.20 A Dated April 10, 2008?21 Q That's correct.22 A Okay. And they do list three bullets there.23 Q And the first one is land use compatibility?24 A That's correct.25 Q And the second one is conformance with

Page 610

1 Regional Solid Waste Management Plan?2 A Which is kind of solipsistic, it seems to me,3 but, yes.4 Q And the third is local facility siting5 concerns?6 A Right.7 Q All right. And then on the last page of the8 exhibit they also list ways that the Applicant can9 address the foregoing deficiencies in response to the

10 conformance checklist in the following ways?11 A On the very last page, Page 6?12 Q That's correct?13 A Yes, I see those.14 Q And were any of these suggestions ever15 brought forward to you as a way to make changes into16 your analysis?17 A Again, my analysis didn't specifically18 respond to the CAPCOG letter. My analysis responds to19 the TCEQ regulations concerning land use.20 Q Is CAPCOG's determination not important to21 you?22 A Certainly it's important, yeah.23 Q On that last page they also -- there's a24 header that says, "bullets added by executive25 committee and motion," and the first one down is that



14 (Pages 611 to 614)

Page 611

1 "The Applicant must agree that no landfill may be2 operated at the current site beyond November 2015?"3 A Correct.4 Q Did you ever talk with anyone at Waste5 Management about closing the landfill in November of6 2015?7 A I don't believe I did ever mention that, no.8 The second bullet says, "New landfills may be located9 in a desired development zone if they include adequate

10 buffer zones and other safeguards."11 Well, you know, there's so many things12 we haven't talked about that this landfill does comply13 with that I think that the CAPCOG has made at least --14 well, I'm going to say -- faulty or incorrect findings15 with respect to these very specific issues.16 Q You believe CAPCOG made incorrect findings?17 A Yes, I do.18 Q And this CAPCOG determination was not a19 factor in your land use analysis in this matter?20 JUDGE SCUDDAY: He answered that21 question three times.22 Q (BY MS. COX) Was this CAPCOG determination a23 factor in your analysis in the BFI case?24 MR. RILEY: I'm going to object this25 time. It's the same question.

Page 612

1 JUDGE SCUDDAY: Irrelevant.2 Q (BY MS. COX) Are you aware of when Waste3 Management is projected to reach capacity under its4 current permit?5 A I'm not aware of that number, no -- that6 date.7 Q Would it surprise you to learn that it was8 somewhere in 2015?9 MR. RILEY: Objection, assuming facts

10 not in evidence.11 JUDGE SCUDDAY: Sustained.12 MS. COX: Your Honor, I believe there13 was some testimony from Mr. Smith on Monday as to when14 the current permit would expire.15 MR. RILEY: Yes, there was. And,16 indeed, Mr. Smith's testimony was, it could be much17 longer depending on waste --18 JUDGE SCUDDAY: That's correct. He said19 it depended on the wastewater.20 Q (BY MS. COX) No one told you when the Waste21 Management landfill would reach capacity --22 MR. RILEY: Objection.23 Q (BY MS. COX) -- was anticipated to reach24 capacity?25 MR. RILEY: I'm sorry. I apologize. I

Page 613

1 withdraw.2 A I'm aware of having worked on a couple dozen3 landfill projects throughout the state that dates for4 reaching capacity are site life calculations and are5 only estimates, that it's entirely dependent on the6 volume of waste coming into the landfill.7 Some people -- not you and not me --8 would misconstrue that as being a closure date. To my9 knowledge, the only landfill in this state that

10 actually has a specific future closure date is11 probably -- again, this is just to my knowledge -- is12 probably the Sunset Farms landfill.13 I'm not aware of that being an14 applicable situation on any other landfill expansion15 throughout the state.16 Q (BY MS. COX) But did anyone at Waste17 Management ever talk with you about when they were18 anticipating to reach capacity under their current19 permit?20 A They may have, but I don't recall what that21 number would have been. And, again, I understand it's22 an estimate only.23 Q Do you recall what that time was?24 A No, ma'am, I do not.25 Q All right. I have some questions for you

Page 614

1 about your prefiled testimony and Waste Management2 here. So it would probably be helpful if you took a3 look at that. On Page -- let's see -- 15 --4 A Page 15? Is that what you're saying?5 Q Yes.6 A Okay.7 Q You note that there has been substantial8 growth occurring in the vicinity of the landfill.9 A Yes, ma'am.

10 Q And that it's continuing -- that it will11 continue to experience substantial growth?12 A That's my expert opinion, yes.13 Q I have a couple of questions for you about14 the specifics of that substantial growth.15 A Okay.16 Q Now, as part of the analysis, if I'm reading17 everything correctly, you made projections on Page 1618 through the Year 2017?19 A That's correct.20 Q Why did you stop in 2017?21 A Off the top of my head, I can't give you a22 specific answer, but I'll give you two that I think23 might get at it.24 First of all, the looking forward growth25 I engaged a firm called Capitol Market Research to



15 (Pages 615 to 618)

Page 615

1 assist me on. So I was able to document past growth2 trends. But the growth in this area is so robust, I3 would say, and the data sources, which is to say the4 censuses, is beginning to be outdated that I wanted to5 take a forward look with another expert.6 I believe that when we first started7 this -- I'm going to say it was in 2007 -- and so we8 just said, "Let's look out 10 years," because that9 seems reasonable.

10 The second reason is that I think you11 don't want to go out much further, because the further12 out you go the more speculative it becomes. So I13 think those are the reasons why 2017 was selected.14 Q You don't believe it's important to make an15 analysis on whether or not land use will be compatible16 in the future based on an estimation of how long that17 landfill might be operating under the permit that your18 analysis is supporting?19 A As I said, as your projection -- the further20 out your projections go the less -- the more21 speculative they become. You know, that's the nature22 of any type of projection.23 I didn't feel that looking at growth24 within the five-mile area that it would serve any25 particular purpose or any reliable -- or to get

Page 616

1 reliable data to project out more than a decade in2 that area.3 There are projects that I've worked on4 that have had estimated site lifes of landfills that5 are more than 100 years, and I don't think it is6 necessary to couple the projection to the site life.7 I think it's necessary to project out as8 far as you reasonably can regardless of what that site9 life is.

10 MR. RILEY: Your Honor, I need to ask11 for a break so I can go cough my head off and then12 return to the proceeding, if that would be all right.13 JUDGE SCUDDAY: All right. Well, let's14 take a 15-minute break.15 MR. RILEY: Thank you.16 (Brief recess: 10:11 a.m. to17 10:30 a.m.)18 JUDGE SCUDDAY: Okay. Ms. Cox, you can19 continue.20 Q (BY MS. COX) Mr. Worrall, if you can please21 turn to Page 21 of APP Exhibit 302.22 MR. RILEY: Is that Page 21, counsel?23 MS. COX: Page 21, yes.24 MR. RILEY: Thank you.25 A Page 21 of APP-302, yes, ma'am.

Page 617

1 Q And that's, just so we're looking at the same2 thing, Table 10, "New Housing Construction"?3 A That's correct.4 Q Okay. And this is research that was done5 on -- can you explain this just a little bit to me?6 A Yes. These were projections or estimates of7 new housing construction within the vicinity of the8 landfill that was prepared at my direction by the firm9 of Capitol Market Research.

10 Q All right. When you say "in the vicinity of11 the landfill," was this within a one-mile radius or a12 five-mile radius?13 A My recollection is it's within a five-mile14 radius.15 Q Okay. And throughout your analysis, there16 are some studies that were done within a one-mile17 radius and some within a five-mile radius?18 A That's correct.19 Q And how did you determine when to do it20 within a one-mile and when within a five-mile?21 A Well, there were two different techniques22 used between the one-mile and the five-mile. As was23 discussed earlier, the MSW rules changed in -- was it24 2006, I believe -- and one of the things that changed25 in those rules that affected land use was growth

Page 618

1 trends. So that's part of the answer.2 So we had to make sure that we looked3 out a sufficient distance, which we judge to be five4 miles. The rules used to say that you had to analyze5 the growth trends of the nearest community, and that6 was relatively straightforward usually because you7 could figure out what the nearest community was.8 My recollection is that the regulations9 say you should analyze the growth trends within five

10 miles and discuss trends and direction -- something to11 that effect. So that's why the five-mile was an area12 of consideration.13 The one-mile is an area of consideration14 because so many of the rules are based on activities15 within one-mile very specifically. So we have both16 one- and five-mile data sets, you might say, in17 response to -- well, the TCEQ rules themselves, I18 guess.19 Q Okay. And in this Table 10 you said that you20 predict 9,738 new homes will be constructed between21 the Years 2009 and 2017?22 A New households, that's right.23 Q New households. And you break it down into24 6300 single-family permits?25 A Well --



16 (Pages 619 to 622)

Page 619

1 Q Is that what "SF" means?2 A Yes, singly family. That's right.3 Q And 3,438 multifamily --4 A That's right.5 Q And how exactly do you define a multifamily6 residence?7 A That would be any residence. It's not a8 single-family residence; in other words, you know, a9 duplex or a fourplex or an apartment building.

10 Q Well, just out of curiosity, when you say11 multifamily, you are talking about an apartment12 building. Is that whole building one permit or is13 there --14 A No, the -- I'm sorry.15 Q Is that whole building one residence or is it16 multiple residents in --17 A It would be multiple residents. So if, for18 instance, you had an apartment building with 20 units19 in it, that would be 20 households, or 20 units.20 Q And so when you say 3,438 multifamily21 residences or permits here?22 A Well, this is a projection of the housing23 units that will be constructed from 2009 through 2017,24 very specifically, based on data and information from25 2000 through 2007.

Page 620

1 So in answer to your question, these are2 estimates of living units or housing units, whether3 they be single-family housing units or apartment4 units.5 Q So you're predicting that it will grow by6 over 1,000 residences a year?7 A Would you repeat your question? I'm sorry.8 Q Are you predicting that in this area it will9 grow by over 1,000 residences each year?

10 A Residences, yes, or units. Yes, that's11 correct.12 Q Okay. But the units are residences for13 families. Correct?14 A That's correct. I just want to make sure I15 heard "residences" versus "residents." There's an16 obvious difference there.17 Q There would be more people living in each18 residence?19 A Thank you. That's right. So you would have20 certain -- you know, 2.5 residents per residence --21 (Laughter)22 A -- as an example, that I'm sure the Court23 Reporter appreciates.24 Q So the 9,738 number that you predict is25 actually times 2.5, number of people that will be

Page 621

1 moving into this area?2 A If we took that to be the number of persons3 per household. I think it's actually somewhat lower4 than that. My belief is it's on the order of 2.25 persons per household, is probably a better estimate.6 Q Can we go back to Page 18 of APP-302 and look7 at Table 7 and 8?8 A Okay.9 Q How do these numbers that you've put down

10 here differ from the other survey that was in Table11 10?12 A How do they differ from the one we were just13 discussing?14 Q Yes.15 A This one is different than that one is the16 sense that this is talking about the supply of17 potential housing units that would be on the ground.18 Okay?19 So what we're estimating here is, in20 Table 7 on Page 18, there are planned to be 17,963 --21 let's call them lots. That's probably a better way to22 think about it. And that would be the supply of lots23 that are available within five miles.24 Now, then, as opposed to the table we25 were just looking at on Page 21, that's what we

Page 622

1 believe the demand for housing construction will be2 over that period of time.3 So one is supply and one is demand, you4 might say.5 Q And on Table 7 and 8 here, what time frame6 were you looking at? Was this -- well, what time7 frame?8 A This is all based on information, as it says9 here, with builder and developers' surveys and also

10 examining City of Austin and Travis County records to11 the best of my recollection.12 But this is all based on information13 that refers -- if I might refer you also to Page 20 of14 APP-302. What this consists of is looking at all the15 blue areas, which are new subdivisions, and the yellow16 areas which are active subdivisions and kind of adding17 up the available lots to be developed in those blue18 and yellow areas to come up with those numbers.19 Q And are these -- these are numbers that are20 available lots right now?21 A That's correct.22 Q This is not predicting how many lots will be23 available in 2017?24 A That's correct.25 Q Have you made any predictions as to how many



17 (Pages 623 to 626)

Page 623

1 lots will be available at that time?2 A No. This is our projection of the lots that3 are potentially available today.4 Q And potentially available today, there are5 17,963 vacant and undeveloped lots within five miles6 of the --7 A That's correct, uh-huh.8 Q And there are 457 multifamily units that are9 already built?

10 A Within five miles, that's correct.11 Q And 8,778 multifamily units planned?12 A Correct.13 Q All right. Can we look at APP-302, Page 24?14 A Yes, ma'am.15 Q If I understand this correctly, this is --16 everything that is in the cross-hatching are the three17 landfills that you've pointed out?18 A That's correct.19 Q And two of them have the purplish lavender20 color on them -- and that's BFI and the Waste21 Management landfill -- and underneath it there's the22 gray crisscross which is the closed Travis County23 landfill?24 A That's correct.25 Q And everything in yellow is residential use?

Page 624

1 A That's correct.2 Q And this is the land use right now in 2009?3 A It was the land use as of the date of my most4 recent field inventory, which as indicated here is5 July 1, 2008.6 Q So if I understand correctly, we're looking7 at adding by 2017 -- and I'm going to pick 20178 because that's the number that you've run projections9 through. But by 2017 we're looking at a lot more

10 yellow here. Correct?11 A It could occur here, but it could also -- I12 mean, we're talking about the difference between the13 one-mile and the five-mile now. Okay.14 Q Okay.15 A So the numbers that we were looking at before16 were the five-mile numbers and now we're looking at17 one-mile numbers, and you had asked me the difference18 between those.19 We could be looking at more yellow20 within this one mile, certainly, but we will21 definitely be looking at more yellow within the five22 miles.23 Q And did you do any research into how much we24 would be looking at within just one mile?25 A Not specifically, no.

Page 625

1 Q Did you prepare a map that would show how2 much we would be looking at within five miles?3 A Yes.4 Q And which map is that?5 A APP-302, Page 20 -- 2-0.6 Q All right. This was as of September 2008, it7 would appear from this?8 A Yes.9 Q And we're looking at considerably more yellow

10 and blue on this map. Is that correct?11 MR. RILEY: Objection, considerably more12 than what?13 MS. COX: Than what we have right now.14 MR. RILEY: As long as that's the15 question --16 JUDGE SCUDDAY: Than 24. Are you17 comparing -- you're saying comparing them to 24?18 MS. COX: I'm rephrase. I'm sorry.19 Q (BY MS. COX) On APP-302, Page 20, we are20 looking at a map that you have drawn that represents21 as of September 2008 the number of subdivisions active22 and new. Correct?23 A Among other things, yes.24 Q And there are blue dots that represent major25 employers and red dots that represent planned

Page 626

1 multifamily -- and I assume that's units?2 A Planned multifamily developments, yes.3 Q And are there planned single-family4 developments or residences? Is that everything that5 would be the blue that you have labeled here?6 A Well, the legend and the labeling are such7 that we've got active subdivisions that are indicated8 in light yellow, and then they have names and numbers9 associated with them. Then we have new subdivisions

10 that are indicated in light blue.11 Both the new subdivisions and the active12 subdivisions can be expected in most cases to contain13 both multifamily housing and single-family housing.14 You can tell that as to whether there's15 a red dot in any of those yellow or blue areas. That16 would indicate there's also a planned multifamily17 component within those subdivisions.18 Q But you've also predicted that there will be19 over 9,000 permits issued between now and 2017 in this20 area?21 A That's a projection, yes. So, again, if I22 might try to clarify -- and if it doesn't, please ask23 me -- we're really looking at demand and supply here.24 That's really the difference between, I think, the25 numbers you're asking me about.



18 (Pages 627 to 630)

Page 627

1 So what we believe we have out here is a2 demand for an additional 9700 households in this area3 through 2017. On the other hand, we see that we've4 got -- and those 9700 households, we believe, will be5 allocated in some way in these subdivisions and6 elsewhere within the five-mile area.7 But we've got more supply of lots on the8 ground than we have demand -- estimated demand for new9 housing units, which is not unusual.

10 Q And BFI is projected to close November 1,11 2015. Is that correct?12 A Per their -- that's subject to whatever TCEQ13 finally rules, I guess. I think that's -- well, you14 can characterize it however you want. But that was15 the subject of the last hearing in that regard.16 Q There will be one less operating landfill in17 2015 -- is that correct -- assuming that their permit18 for expansion is granted?19 A Well, it's November 2015, is one thing.20 MR. RILEY: My objection is, are you21 asking the witness to assume that case or that22 situation?23 JUDGE SCUDDAY: Assuming that it closed,24 there will be one less landfill.25 A It's hard to disagree with the Judge on that.

Page 628

1 Q (BY MS. COX) All right. I have some2 questions about growth trends, which you have put in3 your report starting on, I think, Page 16 -- not on4 16. I think it was probably your prefiled5 testimony -- I apologize --6 A Okay.7 Q -- which would be APP-301.8 A APP-301?9 JUDGE SCUDDAY: 300.

10 A 300? Page 16?11 Q (BY MS. COX) Page 16.12 A Okay.13 Q And in here you state that the landfill is14 located in Planning Area 22?15 A That's correct.16 Q Which was the fastest growing sector in the17 city of Austin from 1990 to 2000?18 A That's correct.19 Q And that the ACRG facility is located within20 that fastest growing sector?21 A Right.22 Q How many sectors are there?23 A Oh, 26.24 Q So out of 26 it was the fastest in the city?25 A And beyond the city, for that matter. Yes,

Page 629

1 the city and its ETJ -- extraterritorial jurisdiction.2 Q And it grew by 133 percent in that 10-year3 time frame?4 A That's correct.5 Q And I believe you stated it increased from6 50,078 people to 57,913 people?7 A I'm sorry. You lost me on that one.8 Q I'm sorry. On APP-302, Page 7, you stated9 that from 2000 through May 2008 that the area

10 increased from --11 JUDGE SCUDDAY: Page 7?12 MS. COX: Yes. You know what, I think13 I've written the wrong notes down here, and I14 apologize.15 Q (BY MS. COX) But -- well, let me -- while16 we're on Page 7, from 2000 -- you state in your report17 that from 2000 through May 2008 that the area within18 five miles increased by an additional --19 JUDGE SCUDDAY: Page 7 of what?20 MS. COX: Of APP-302.21 JUDGE SCUDDAY: Oh, okay. I thought we22 were still on the prefiled, Ms. Cox. Keep me up with23 you. You're bouncing around like a tennis ball.24 MS. COX: I'm sorry, Judge.25 Q (BY MS. COX) That it increased by 7,835

Page 630

1 households?2 A I see that on Page 7, yes.3 Q And that that -- it grew from 50,000 in 784 households to 57,913?5 A That's correct.6 Q And this was all in the PA-22 sector?7 A No, ma'am. These are different areas of8 analysis. Okay?9 Q Okay. Sorry.

10 A So we've talked about the five-mile radius11 earlier or just a minute ago. This growth, as it says12 here, is within the five-mile radius. That's the13 household change from 2000 through 2008 in the14 five-mile radius.15 The other numbers you're asking me about16 are for Planning Area 22, which is a much larger area,17 and that's based on city and census data. Of course,18 census data is not available past the Year 2000. So19 we couldn't rely on that moving forward.20 Q And the previous page, Page 6 of APP-302, had21 stated that the 1990 population for Area 22 was22 40,528?23 A Right.24 Q And that it grew to 94,522?25 A Correct.



19 (Pages 631 to 634)

Page 631

1 Q With an absolute change of 53,994 people?2 A Correct.3 Q Have you made any predictions for growth4 beyond 2008?5 A Yes. I think we were just talking about6 that. We made projections out through 2017.7 Q Well, that was on the number of residences or8 permits or units.9 A Correct.

10 Q Okay. You believe that growth will continue11 beyond 2017 as well?12 A Yes, I do.13 Q I believe you testified earlier that it's14 just hard to make that determination because it's in15 the future?16 MR. RILEY: Objection. Again, an17 indicator of asked and answered is "You testified18 earlier this," and so --19 JUDGE SCUDDAY: Ms. Cox, you keep going20 over the same thing.21 MS. COX: All right. I'll move on.22 Q (BY MS. COX) If I can ask you to take a look23 at the aerial photographs you included in APP-302,24 which start on Page 26.25 A Yes, ma'am.

Page 632

1 Q And this was a photo from 1980?2 A Page 26 is a photo from 1980.3 Q Okay. It states that at that time there were4 346 residences --5 A That's my estimate. That's correct.6 Q -- for that key, and there were two landfills7 operating at the time?8 A That's correct.9 Q And no schools and no daycare centers?

10 A That's right.11 Q And then the next page of Page 27 is a photo12 from 1984?13 A Correct.14 Q And it's fairly the same. The number of15 residences has jumped from 346 to 359?16 A Right.17 Q And still no schools or daycare centers?18 A That's right. May I add one --19 Q Certainly.20 A -- point of clarification there? It also21 says there's two active landfills there. And the22 previous one said two active landfills. I think it23 might be of interest to you to know that the two24 active landfills changed.25 In other words, my belief is, in the

Page 633

1 1980 aerial we see the active landfill of ACL as well2 as to the south of it the Travis County site. Now, by3 1984, we still have two active landfills, but now they4 have become the BFI site and the ACL site, because at5 this point I believe the Travis County landfill had6 closed. So I just want to make that clear.7 Q Thank you very much. On Page 28 of APP-302,8 that's a photo from 1988. We have the two active9 landfills which are now BFI and Waste Management and

10 360 residences that you've estimated?11 A Correct.12 Q And the number of residences from 1980 and13 1988 hasn't really changed much?14 A That's right.15 Q On Page 29, still BFI and Waste Management16 landfill and the same number of estimated residences?17 A That's correct.18 Q This was the start of what you previously19 said -- this was the start of 1990 when you stated20 that that area started to grow by 133 percent, the21 area of which the landfill is a part of?22 A That's correct, a much larger area. But23 that's correct.24 Q And then the next photo on Page 30 is a 199525 aerial, and our numbers have now jumped for the

Page 634

1 residences from 360 to 655?2 A Right.3 Q And we now have a school?4 A Correct.5 Q And then the next page, Page 31, it's a 20036 aerial, and the residences is now 750?7 A Correct.8 Q With one school and one daycare center?9 A That's correct.

10 Q And the last photo that we have is 2006. We11 had 1183 residences that you've estimated with one12 school and one daycare center?13 A That's correct.14 Q When you look at Page 26 and Page 32, despite15 the fact that one picture is quite a bit darker than16 the other, there's a big difference between the two,17 isn't there, and just the overall layout and the18 amount of activity that's going on?19 MR. RILEY: Are these the questions you20 want him to answer; in which case, I'd ask you to21 break your question at least into two pieces. But22 just asking whether the photographs are different23 doesn't seem to be a relevant question.24 A And I actually lost your -- the things you25 are asking me to compare it to. Was it 26 and 32?



20 (Pages 635 to 638)

Page 635

1 Q Page 26 and 32, the first photograph and the2 last photograph.3 A Okay.4 Q There's a lot more activity going on in that5 last photograph in 2006, isn't there?6 MR. RILEY: Objection. Are we going to7 look for cars on roadways? I mean --8 JUDGE SCUDDAY: I was going to say, do9 you want to define what you mean by "activity"?

10 MS. COX: All right, sir.11 Q (BY MS. COX) There are a lot more residences12 in the photograph. Is that correct?13 A That's correct.14 Q And there are more businesses as well?15 A More commercial and industrial16 establishments, that's correct.17 Q Is it fair to say that this has become an18 active area?19 A Well --20 Q Compared to the 1980 photograph?21 A Yes, unless you would be a farmer, I guess,22 and then you might regard it as less active.23 Q The farmers thought the 1980 photograph was24 quite active?25 A It was hopping, yeah.

Page 636

1 Q Did you ever see any photographs of this site2 from 1970 when a landfill actually first started3 operating here?4 A This was the most complete collection of5 aerials I was able to obtain. We did it just to try6 to show, you know, very explicitly the growth in the7 area.8 Q Looking at your analysis on Page 7 --9 A Of --

10 Q I think it's Page 7 of APP-302.11 A Thank you. Yes.12 Q You have a chart -- a table at the bottom,13 LU-3, "housing units within one mile by year."14 A Yes.15 Q And in that chart it's pretty level all the16 way up to 1990, just like you represented on the17 photographs.18 A Right.19 Q And then it starts to climb up in 1995. And20 then starting, it looks like, about 2004 there's a21 sharp increase. Is that correct?22 A That's correct.23 Q And this is within one mile of the landfill?24 A That's correct.25 Q Have you seen any indications that that sharp

Page 637

1 increase is going to slow down?2 A Yes.3 Q What would those indications be?4 A The economic meltdown of the United States.5 I mean, seriously. I think that that's probably a6 bigger factor in affecting this growth trend than any7 particular local phenomenon.8 I don't mean to be joking about it. I9 think that that really is a major influence on the

10 shape of this curve like it would be any curve we11 would be looking at in the United States.12 Q As a expert in land use analysis, are you13 familiar with the real estate market and the cost of14 housing?15 A I'm reasonably familiar. Yes, I believe I16 am.17 Q You stated that you think that the economic18 situation will impact growth and development here. Is19 that based on your expertise?20 A Yes.21 Q Are you familiar with the average home price22 for residences in this area?23 A No, I do not know that number.24 Q You didn't do any research into the price of25 residences in this area?

Page 638

1 A I did not specifically -- Capitol Market2 Research did, the subcontractor I engaged to do the3 forward-looking projections, and they did some4 analysis as a matter of course about housing prices in5 the area, but those results were not of particular6 concern to me other than to note that there's a7 variety of housing types here.8 Some are starter homes and some are9 move-up homes. So there's some diversity in the home

10 types here in terms of pricing.11 Q But you included in your analysis on Page 1912 a chart that listed the sales price of homes in this13 area.14 A Okay.15 Q And if I'm reading this correctly, the16 average sale price of homes in 2008 was $149,997?17 A Okay.18 Q And are you familiar with the average home19 prices of most residences in Austin?20 A I don't know what that comparable number21 would be for the city of Austin.22 Q Do you know how close the landfill is to23 downtown Austin?24 A I could estimate its distance.25 Q What would you estimate that distance to be?



21 (Pages 639 to 642)

Page 639

1 A I would estimate it to be about seven miles.2 Q Okay. Are you aware of any other areas in3 Austin within seven miles of downtown where one can4 purchase a home for $149,000?5 A Well, that's a loaded question. First of6 all, I testified I'm not aware of average home prices.7 And, secondly, what we're looking at is just an8 average sales price here, and, thirdly, it's9 undoubtedly changed quite a bit in the last year as

10 we've just referenced.11 Q Well, given the economic situation, wouldn't12 it seem more likely to you if people who were looking13 for homes would buy homes that were cheaper than the14 more expensive homes?15 A I missed the first part of that question, I16 think. Would you please ask it again?17 Q I'm not sure if I can remember exactly what I18 stated. The gist of it was, are you aware -- do you19 believe that the economic situation could cause people20 to look for less expensive homes?21 A Could be.22 Q And would $149,000 be a less expensive home23 in your opinion?24 MR. RILEY: Less than 150?25 JUDGE SCUDDAY: Less than what?

Page 640

1 MS. COX: Less than the average home2 price in Austin.3 JUDGE SCUDDAY: Well, he said he didn't4 know what the average home price in Austin was today.5 Q (BY MS. COX) Do you live in Austin,6 Mr. Worrall?7 A No, ma'am, I do not. I used to, but I don't8 anymore.9 Q You stated earlier in your testimony that you

10 prepared the land use analysis for Waste Management11 for previous permit applications?12 A That's correct.13 Q All right. And you said you had -- I can't14 recall if you stated if you had read that recently or15 not.16 A No, I have not read that recently.17 Q Okay. Have you read any other analysis done18 recently -- any other analyses that were done in the19 past for what's now the ACL landfill when you prepared20 your analysis this time?21 A Other than the documents we've referenced; in22 other words, there's the city of Austin demographic23 information. There's the city of Austin plans.24 There's my previous versions of my own report. I25 think they are all adequately -- well, maybe not

Page 641

1 adequately, but they are all referenced in my2 report -- those other studies that I examined.3 Q Do you recall the analysis that you performed4 for 249C and what your predictions for growth were at5 that time?6 A Generally, I do. Would you like me to7 elaborate on that?8 Q Yes, please.9 A Okay. At the time it was a very slow-growing

10 portion of the city, and I think that our projections11 indicated that. That's just my general recollection.12 I haven't reviewed it specifically.13 Let me see if there's anything else I14 can tell you about that projection or those -- that15 information. The only other thing I would say about16 it that I remember is, it wasn't a contested case17 which was very surprising to me.18 So the facts aren't as seared in my19 brain as they might otherwise have been.20 Q Did you ever see the Findings of Fact that21 were issued in regards to 249C?22 A I probably did, but I don't recall them.23 Q Would it help if you looked at the document?24 MR. RILEY: Help to do what?25 Q (BY MS. COX) To recall the specific --

Page 642

1 A Oh, I'm sure it would help.2 JUDGE SCUDDAY: Specific to what?3 MS. COX: Oh, I'm sorry. The specifics4 regarding land use.5 A It would help.6 Q (BY MS. COX) Could you please turn to Travis7 County's Exhibit JW-5. Do you have that in the8 prefiles?9 A JW-5. I don't have a clue where to look.

10 I'm sorry. I'm getting my JWs mixed up.11 JUDGE SCUDDAY: It should be Tab 5.12 A Thank you. I found it.13 Q (BY MS. COX) I apologize for all of the JWs.14 I didn't realize we had nearly so many JW witnesses.15 A It's a popular set of initials.16 Q And from the assistance of your counsel you17 have found JW-5?18 A Indeed I have.19 Q And there's a lot of pages in this exhibit,20 but looking specifically at Page 16 --21 A Page 16 of 45 on JW-5?22 Q That's correct.23 JUDGE SCUDDAY: Let's establish what24 we're looking at.25 MS. COX: I just realized that, Your



22 (Pages 643 to 646)

Page 643

1 Honor.2 Q (BY MS. COX) If you go back to Page 1 --3 JUDGE SCUDDAY: No, you go back to4 Page 4.5 MS. COX: Oh.6 Q (BY MS. COX) If you look at Page 4 of 45, is7 it Permit No. MSW-249C?8 A Yes. Yes, I see that.9 Q And this was actually issued September 15,

10 1995. Is that the date?11 A That's what it says, yes.12 Q And this is the permit that would have been13 issued in response to the analysis you had previously14 performed, you believe?15 A I believe that's right.16 Q And then turning to Page 14 is where at the17 top it says Findings of Facts and Conclusions of Law?18 A Page 16? Is that what you said?19 Q No, 14.20 A 14? Correct.21 Q And then starting on Page 16, under C,22 there's a portion that says "land use"?23 A Yes, ma'am.24 Q Okay. And then on Page 18, No. 7, it states25 that "The city of Austin's historic growth trends have

Page 644

1 been primarily westward."2 A Okay.3 Q And "The northeast area where the landfill is4 located has accommodated approximately 10 percent of5 Austin's growth over the last 30 years."6 A Okay.7 Q Now, clearly, there was a lot more growth8 that happened than --9 JUDGE SCUDDAY: Clearly, there was a lot

10 more growth that happened when?11 Q After you made this statement.12 JUDGE SCUDDAY: He didn't make that13 statement. That's a Finding of Fact in the permit.14 Q (BY MS. COX) This finding was made based on15 an analysis that you had performed. Is that correct?16 MR. RILEY: Objection, that's not in any17 way established nor is it even likely true.18 JUDGE SCUDDAY: I agree. I mean, this19 is a permit of TNRCC.20 Q (BY MS. COX) After the Finding of Fact from21 TNRCC was made in 1995, did the growth continue at a22 10 percent rate in this area?23 JUDGE SCUDDAY: That's not what it says.24 MS. COX: Okay.25 JUDGE SCUDDAY: It says it's 10 percent

Page 645

1 of Austin's growth, not at a 10 percent rate. Come2 on, Ms. Cox.3 MS. COX: I'm sorry, Your Honor.4 JUDGE SCUDDAY: You have got a question5 there, but you need to ask your question correctly.6 Q (BY MS. COX) First of all, after this7 Finding of Fact was made, did the growth in Austin8 follow the historic growth trend and move westward?9 A What was the last part -- in the what?

10 Q Did it follow the historic growth trends of11 developing westward?12 A After this Finding of Fact was made?13 Q Yes.14 A Not to the extent that it had been.15 Q What specifically do you mean by that?16 A Well, I think you're asking me a really17 complicated question, in my opinion. Okay? I think18 there's a lot of factors --19 JUDGE SCUDDAY: Let me kind of cut20 through this. Isn't it true that after this was made21 that the growth -- we started seeing more percentage22 of the growth in other areas than westward --23 A That's correct.24 JUDGE SCUDDAY: -- and at the percentage25 of Austin's growth after this period, would you agree

Page 646

1 that it was still 10 percent or more than 10 percent2 of Austin's growth?3 A This northeast area --4 JUDGE SCUDDAY: Yes.5 A -- if we could describe it as that, which is6 not unlike Planning Area 22 as found, although not7 necessarily identical, has captured a larger share of8 Austin's growth.9 Q (BY MS. COX) And then in No. 8 you say that

10 there may be some -- growth may actually exceed those11 historic trends, and you point to a couple of reasons12 why, one of which was the airport --13 MR. RILEY: Objection. Again, there14 seems to be a fundamental misunderstanding at what15 Findings of Facts are.16 MS. COX: I apologize about that.17 MR. RILEY: He didn't say any of this.18 This is a TCEQ Finding of Fact.19 JUDGE SCUDDAY: Yeah, yeah. Let's go20 ahead.21 Q (BY MS. COX) After the Finding of Fact was22 made in 1995, that there may be some specific capital23 improvements in this area which might cause area24 growth to exceed those historic trends, one of which25 was the airport being built, it did exceed those



23 (Pages 647 to 650)

Page 647

1 historic trends. Correct?2 A Yes.3 Q And then in Finding of Fact No. 9, the Court4 stated that -- or made the finding that, "Although the5 urbanizing fringe of the Austin area will grow rapidly6 at the capital improvement set out in Findings of Fact7 (C)(8)," which we talked about was the airport and a8 few other improvements or made a schedule, "the9 vicinity of the expansion site will not reach urban

10 densities through the Year 2020."11 A I see that, yes.12 Q Do you believe that that area has reached13 urban densities by now, 2009?14 A Well, I still characterize it as they do in15 Finding of Fact No. 9 as the urbanizing fringe. So if16 we look at, for instance -- if you go back and look at17 that the five-mile map that we talked about earlier --18 I don't recall the exhibit number -- if you go to the19 far left side of that, which is to say the far west20 side, we're certainly at urban densities.21 If you go to the far east side, we're at22 sub-urban densities and in some cases ex-urban23 densities, I guess I would say. There's a range of24 densities here, and it's awfully hard to draw a line25 to say where urban densities are achieved, first of

Page 648

1 all, and, secondly, I'm not quite sure what the Court2 means by "urban densities" as they say it here.3 So it's certainly has become more dense4 in that subsequent period of time. But I would5 further say that the areas of analysis have changed,6 and we're looking at so many different -- based on7 changes in the TCEQ rules, as I said.8 So it's kind of hard to compare one to9 the other, but I would be happy to try.

10 Q Is it fair to say that growth happened quite11 a bit faster than you predicted when you made your12 analysis?13 MR. RILEY: Objection. "If he recalls,"14 I don't remember him recalling his analysis.15 JUDGE SCUDDAY: Yeah, you're going back16 to his analysis as opposed to these findings. So you17 need to make clear what your question is referring to.18 Q (BY MS. COX) Do you recall -- from what you19 recall of the previous analysis that you had20 performed, is it fair to say that growth happened21 faster than you had predicted?22 A Let's say that the analysis you're talking23 about initially was the one that I prepared, I24 believe, in 1990. Now, this Finding of Fact is 1995.25 So I'm at a little loss as to those dates. And then

Page 649

1 as we've all discussed, this is, I guess, the Hearing2 Examiner's findings or the Commission's findings --3 not mine.4 Q Okay. Well, let's just talk about the5 analysis you recall doing in 1990.6 A Okay. The analysis I recall doing in 19907 was based on historical growth trends. It wasn't as8 forward looking as what we're doing here now.9 What we are doing now is way more

10 sophisticated, in my humble opinion, than what I was11 doing 15 years ago on this sort of stuff. So that's12 the first thing I would say.13 The second thing is that growth in14 Austin is increasingly moving out of the west. I'm15 not saying it isn't occurring there still, but there's16 greater shares of it occurring to the east of Austin,17 just to generalize between east and west for the time18 being.19 This is some great degree to the city's20 credit, because the city is trying to move development21 to the east into the desired development zone as we've22 referenced in a lot of other stuff and out of the23 drinking water protection zone.24 So city policies have changed. And to25 try to answer your question, I would say that the

Page 650

1 analysis I did at the time was accurate and true, and2 the city and other factors have caused growth to shift3 to the east. And there's nothing here that I don't4 think that says that won't happen. It just said that5 that was what was happening.6 And then this, finally, I would say,7 points out why I'd just as soon not do projections8 looking out more than about 10 years.9 Q But did you make the finding in 1990 that

10 growth --11 JUDGE SCUDDAY: It's not his finding,12 Ms. Cox.13 MS. COX: I'm sorry.14 Q (BY MS. COX) Did you make an analysis in15 1990 that growth would happen as fast as it has?16 A My recollection of the 1990 analysis of17 growth trends that I did was -- they were historic18 growth trends as the findings say here.19 So it was mostly having to do with20 documenting past growth trends to get to that point,21 and that's my best recollection of that at that time.22 So to the extent that this finding says23 "historic growth trends have been primarily westward,"24 I think that reflects my analysis at the time, and I25 think the thing to look at is historic. And then when



24 (Pages 651 to 654)

Page 651

1 we go to No. 8, we're saying, "Now, how could these2 historic growth trends potentially change?"3 This, again, is not my analysis, but it4 a result from it, and it talks about the proposed5 Austin airport. Well, that's not the airport we ended6 up with, as you may recall. This was a different7 airport. Okay? So that didn't happen.8 And then we go to the next thing. We9 see B, "Completion of Mocan Parkway." Well, Mocan was

10 potentially scheduled to be in some area roughly where11 Springdale Road was. It was real rough. You go12 through Pioneer Crossing, go down Springdale Road.13 Well, subsequently, we built State14 Highway 130 further to the east. So that spurred15 growth, but it's done it in a different direction. So16 I do think that the findings as they describe them are17 generally consonant with my findings, and that was to18 say historic growth at that time was to the west.19 We weren't expecting a lot of it to the20 east with the exception of these things --21 unanticipated changes or anticipated changes that22 might spur more growth. That has, in fact, happened,23 though.24 Q Is it fair to say that growth trends have25 changed since 1990?

Page 652

1 MR. RILEY: Objection, asked and2 answered.3 JUDGE SCUDDAY: Sustained.4 Q (BY MS. COX) Mr. Worrall, turning back to5 your analysis in APP-302, on the last page -- well,6 not the last page -- the last page of your -- of7 the -- I guess it would be the first part of the8 analysis on Page 10 where you make your conclusions.9 A Yes.

10 Q You state that the use of this land for a11 municipal solid waste site represents a compatible12 land use for the following reasons.13 A Correct.14 Q No. 1, because the 71-acre expansion site15 abuts two active landfills together totaling16 approximately 641 acres, that the expansion in itself17 does not represent a significant change in area land18 use relationships.19 A Correct.20 Q And, No. 2, that the existing site has been21 permitted as a landfill since 1974, and landfilling22 has occurred adjacent to the existing site since 1968.23 A Correct.24 Q Okay. So if I understand what you're saying25 here, the landfill has been there for a number of

Page 653

1 years and, therefore, it was compatible then and it's2 compatible now?3 A No, I don't think that it follows. I think4 it just -- what I'm saying is, the landfill has been5 there for a long time and landfilling activities have6 been there for a long time for like 40 years. That's7 what it says. That's what I'm saying.8 Q Do you think that land use can change over9 time?

10 A Yes.11 Q Do you believe the land use has changed in12 the roughly 40 years that the landfill has been13 operating?14 A Demonstrably has.15 Q You still believe that this landfill is16 compatible with the residential and urban land use17 that surrounds it?18 A What do you mean by "still"? I do right now19 believe that, yes.20 Q At what point could it become an incompatible21 land use?22 A I don't know how to answer your question.23 I'm sorry. Could you rephrase it for me, perhaps?24 Q Well, how many residences would it take25 within a five-mile radius to make it an incompatible

Page 654

1 land use?2 A I don't have a hard and fast answer for that.3 Q But 10,000 residences is not enough?4 MR. RILEY: Objection. Sorry. I5 apologize. I withdraw it.6 A 10,000 residences is not enough, was your7 question --8 Q (BY MS. COX) Yes.9 A -- within five miles?

10 Q Within five miles.11 A Well, I would reiterate my earlier answer,12 first of all, that I don't have a hard and fast number13 that I think would render something compatible or14 incompatible.15 And within five miles, my recollection16 is, we've got some 57,000 residences currently. So17 I'm not quite sure I understand.18 Q Well, is there any number of houses that19 surround this landfill within five miles that would20 make this landfill an incompatible land use?21 A I'm going to have to reiterate my previous22 answer. I don't have a threshold number for what that23 would be. I've worked on many cases throughout the24 state of Texas with a wide range of numbers of25 residences within a mile. That, I know. And I don't



25 (Pages 655 to 658)

Page 655

1 have a hard and fast number.2 I don't think it's for me to provide3 that number. I think that if the TCEQ felt that there4 was a threshold number that that would be in the rules5 and we would count the residences and we would either6 meet that or exceed it like total suspended solids or7 something or whatever -- some other measure, but we8 don't have that measure. So without that measure, I9 have no benchmark to compare it to.

10 Q So, for you, there's no number that would11 make it incompatible?12 MR. RILEY: Objection.13 JUDGE SCUDDAY: Ms. Cox, he just14 answered that.15 MS. COX: I'll pass the witness.16 JUDGE SCUDDAY: Let me ask -- let me17 kind of follow up.18 CLARIFYING EXAMINATION19 BY JUDGE SCUDDAY:20 Q At what point would you feel that this21 landfill would become incompatible? What would have22 to happen, say, within the mile radius?23 A Okay. I think what we would have to see, by24 way of example, would be that we'd have residential25 activity abutting the landfill adjacent to it. I

Page 656

1 would be very concerned about that.2 However, I would temper that, Your3 Honor, by saying that there's at least an element that4 we haven't really gotten into about the landfill and5 the order of -- I think order matters and precedence6 matters, and I'm trying to demonstrate --7 Q I understand that.8 A Okay. I'm hoping that the aerial photographs9 we talked about begin to demonstrate that. There's

10 this other notion of kind of coming to the nuisance.11 I'm not saying this is a nuisance, but --12 Q Okay. But I'm talking about compatibility of13 a landfill with residential use.14 A Okay. With residential use specifically?15 Q Yes.16 A If tracts of land developed abutting the17 landfill that were developed as residential, I would18 think that we could be facing an incompatibility19 issue.20 I think the same would be true if we saw21 a church or a school or some of these other areas of22 TCEQ concern. I would be very concerned about that.23 JUDGE SCUDDAY: Okay. Ms. Farhadi?24 MS. FARHADI: Thank you.25

Page 657

1 CROSS-EXAMINATION2 BY MS. FARHADI:3 Q Good morning, Mr. Worrall. My name is Meitra4 Farhadi, and I'm here on behalf of the City of Austin.5 A Hi. Could I just get a break for one second,6 just to get something in my throat?7 Q Sure.8 JUDGE SCUDDAY: Certainly.9 A Thank you. I'm ready.

10 Q (BY MS. FARHADI) How much are you billing11 Waste Management of Texas for your land use analysis12 and for this entire expansion process for which you're13 providing your analysis?14 A Over the last couple of years or so? Is that15 what you're asking me?16 Q Yes, from whenever you started working on17 this expansion and the land use analysis associated.18 A Well, one of the Waste Management people had19 suggested to me in anticipation of this question is20 that I should differentiate between what I've been21 paid and what I've billed, and there is a difference22 there.23 Let me ask you this: What's your hourly24 rate?25 (Laughter)

Page 658

1 A I'm sorry.2 Q (BY MS. FARHADI) That's okay. What is your3 hourly rate for this --4 A $200 an hour.5 Q How much have you been paid to date, if your6 recall?7 A To the best of my recollection, it's about8 $20,000, I think.9 Q And are there any outstanding invoices or

10 bills, if you will?11 A I believe there are, yes.12 Q Do you have a guess of how many hours are on13 those outstanding invoices?14 A It's not a significant amount, I would hasten15 to add.16 Q But you will be billing them for your time17 spent here at the hearing, I imagine. Correct?18 A I'm looking forward to it, yes.19 (Laughter)20 Q (BY MS. FARHADI) Okay. I believe you state21 in your prefiled testimony that the pertinent TCEQ22 rule applicable to land use is 330.61 Subsection (g)23 and (h). If you would turn there for me, if you have24 the rules book.25 A To the rule book?



26 (Pages 659 to 662)

Page 659

1 Q To the MSW rules, yes. And you're familiar2 with these rules. Correct?3 A I am. I'm not real good with the actual rule4 numbers. Would you please give me the cite again?5 Q Yes. It's 330.61(g) and (h) are the6 subsections.7 A Okay. Thank you.8 Q And this rule requires the applicant to9 provide --

10 A Excuse me just one moment. I'm almost there.11 Q Sure, just let me know when.12 A Okay. Okay. I'm there. Yes.13 Q And this rule requires the applicant to14 provide certain information to the Executive Director15 of the TCEQ in evaluating the impact. Correct?16 A That's correct.17 Q And those factors would include -- I'm going18 through 1 through 5 now under Subsection (h), zoning,19 character of surrounding land uses within one mile,20 growth trends within five miles and proximity to21 residences and other uses. Correct?22 A That's correct.23 Q As well as a discussion of known wells within24 500 feet, I believe?25 A That's correct.

Page 660

1 Q So, in your opinion, then, is there some2 subjectivity with regard to determination of land use3 compatibility pursuant to these rules?4 A Well, there's no subjectivity about the5 information that needs to be provided.6 Q Correct.7 A So I tried to carefully read the rules and8 supply that which they're asking, and then I formed an9 opinion based on that.

10 Q So does the TCEQ have any specific numerical11 limits or requirements with regards to what12 constitutes a compatible land use with regard to an13 MSW facility?14 A Not to my knowledge. What you're looking at15 is what I regard to be the heart of the compatibility16 issue, those very issues that you enumerated.17 Q Which is providing the TCEQ with information.18 Correct?19 A That's correct.20 Q Are you aware that this cite contains an21 industrial waste unit?22 A Yes.23 Q Did you do any research into that industrial24 waste unit in performing your land use analysis for25 this application?

Page 661

1 A No.2 Q Is it your testimony today that the location3 of buried industrial waste is not of concern with4 regards to human health and the environment and the5 protection thereof?6 MR. RILEY: Objection. "Testimony here7 today"?8 JUDGE SCUDDAY: Yeah.9 MR. RILEY: I haven't heard any question

10 even close to --11 JUDGE SCUDDAY: I haven't heard anything12 to that effect.13 MS. FARHADI: I'm sorry.14 Q (BY MS. FARHADI) Is that your testimony? Do15 you have an opinion on that?16 MR. RILEY: I'm sorry. I don't17 understand the question.18 Q (BY MS. FARHADI) I'm looking at -- I'm still19 applying the rules now --20 A Okay.21 Q -- under Subsection (h) of the regulations.22 It states that a primary concern is that the use of23 any land for a municipal solid waste facility not24 adversely affect human health or the environment.25 Correct?

Page 662

1 A Correct.2 Q Would you agree with me that the presence of3 industrial waste could possibly impact human health or4 the environment?5 MR. RILEY: Objection. "Presence of6 industrial waste"? Laying on the ground, floating in7 the air, there's really no --8 JUDGE SCUDDAY: Can you be more9 specific, Ms. Farhadi?

10 MS. FARHADI: Yes.11 Q (BY MS. FARHADI) The presence of buried12 industrial waste at a landfill site, specifically at13 this landfill site.14 A As it says, the primary concern is that the15 use of any land for municipal solid waste -- for a16 municipal solid waste facility not adversely impact17 human health or the environment.18 It doesn't say anything about industrial19 waste here.20 Q So do you believe that industrial waste --21 buried industrial waste would not adversely impact22 human health or the environment?23 JUDGE SCUDDAY: That's not what he said,24 Ms. Farhadi.25 Q (BY MS. FARHADI) Do you have an opinion on



27 (Pages 663 to 666)

Page 663

1 that?2 MR. RILEY: Objection. Counsel called3 his attention to a rule regarding municipal solid4 waste and now is asking about industrial solid waste.5 JUDGE SCUDDAY: She can ask him about6 the industrial solid waste. She just needs to -- I7 mean, he just needs to understand it's not -- he said8 it's not in the rule. She can ask him.9 MR. RILEY: I agree, but it's the

10 context.11 Q (BY MS. FARHADI) If I may clarify. Under12 the rule, Mr. Worrall, it talks about the concern with13 the use of land for an MSW facility. Correct? Under14 Subsection (h) --15 A That's correct, yes.16 Q So if the land being used for that MSW17 facility has also been used as an industrial waste18 site, would that be of concern to you in forming your19 land use analysis?20 A I'm going to refer you down a couple of21 sentences there. It says, "To assist the Commission22 in evaluating the impact of the site on the23 surrounding area the owner and operator shall provide24 the following." So, I mean, that's the basis for what25 I do, and I'm trying to assist the Commission in

Page 664

1 evaluating this.2 JUDGE SCUDDAY: But you're not answering3 her question.4 A Okay.5 JUDGE SCUDDAY: The question is: If the6 land was used for an industrial waste site, do you7 think that would -- how would that go into your8 thinking?9 A Thank you for clarifying. I don't understand

10 the constituents of industrial solid waste -- or11 industrial solid waste -- is that the right term -- or12 industrial waste. So I don't really have an opinion13 about how industrial waste would differentially cause14 my findings to be different.15 Q I think you might have said this, so I'm16 sorry if I'm duplicating. You didn't consider it when17 performing your analysis?18 A That's right.19 Q Is your opinion and your resulting land use20 analysis in this case on land use compatibility only21 referring to the expansion area, or does it refer to22 the entire ACL facility?23 A It refers to -- "does it refer to," was the24 verb you used? It refers to the entire permit25 boundary, existing and proposed facility.

Page 665

1 Q Okay. I would like to take you to Page 18 of2 your prefiled testimony.3 A Yes, ma'am.4 Q And I'm trying to find the exact line. In5 response to the question on the top of the page, the6 first question, on your expert opinion on the proposed7 expansion of the facility being compatible with land8 uses based upon the character within a one-mile9 radius --

10 A I don't think I'm on the same page as you.11 JUDGE SCUDDAY: You said "18."12 MS. FARHADI: Oh, I'm sorry. Let me --13 yes, 18 -- sorry -- Lines 6 through 8. You state that14 there is no evidence indicating that the presence of15 these facilities have to deterred, are deterring or16 will deter growth.17 A Correct.18 Q And you're referring to the ACL landfill19 facility. Correct?20 A Well, as it says up above there, it's ACL and21 BFI.22 Q Okay. What type of evidence would you be23 looking for here?24 A Well, I would be looking at some of the25 evidence that we've been talking about the last hour

Page 666

1 or so, if I might refer back to that, with Ms. Cox2 saying, "Well, it looks to me like growth is greater3 than you anticipated that it would be here." So4 that's the kind of evidence I'm looking at.5 We're finding greater growth here, a6 greater share of the growth occurring in this part of7 Austin than we used to. So I don't see any evidence8 of it being deterred, in very simple terms.9 Q So you would be looking for a lack of

10 residential growth around the landfills. Is that a11 fair statement?12 A That's right. That's a good -- I wouldn't13 say that's the sole indicator, but that's a good one.14 Q So if there was lack of residential growth15 around these landfills, would that weigh in favor of16 land use incompatibility in your opinion?17 A It's a little convoluted for me. Would you18 please ask it one more time? I'm sorry.19 Q Yes. I seem to be hearing from you that20 because there's robust growth in this area --21 A Yes.22 Q -- it's demonstrating that the growth is23 compatible with the existing land use of landfills.24 Correct?25 A It's demonstrating that the landfill has not



28 (Pages 667 to 670)

Page 667

1 deterred growth.2 Q So if there was a lack of residential growth,3 would you believe that the landfills were deterring4 growth and would that factor in as making it an5 incompatible land use?6 A If there was a lack of growth, it could be7 for a number of reasons. You know, we talked just a8 moment ago and the previous questioner was asking9 about factors affecting growth. Well, we thought

10 there was going to be an airport here. It didn't11 happen. We thought there would be something called12 Mocan. It turned into State Highway 130. We're just13 getting announcements that U.S. 290 will become a toll14 road.15 The city of Austin has got policies they16 are trying to redirect growth to this area. So I17 think it could be a factor, but only a factor -- not18 the factor. So to say "lack of growth" and tie it19 with the presence or absence of a landfill, I think,20 is -- I don't want to say it's too simplistic, but21 there could be other factors involved.22 Q So would you agree that the inverse would23 also hold true and that the presence of robust growth24 would also be too simplistic, if you will?25 A Well, it's a lot easier to talk about the

Page 668

1 presence of something than it is the lack of2 something, as I'm sure you would agree. So I don't3 think it's necessarily the flip side of that or that4 that's necessarily the same case.5 In other words, you're asking me about6 the lack of something. I can attribute a lot of7 reasons to why there's a lack of something. But if8 we've got the presence of something, we've got a very9 definable thing we're talking about.

10 Q Can you not also attribute a lot of reasons11 as to why people would move near a landfill?12 A Why people would move anywhere? You bet; a13 whole bunch of reasons.14 Q If, hypothetically, a developer told you that15 he was not developing his land closer to an active16 landfill and instead developing portions further away17 first simply because of the presence of that active18 landfill, would that be the type of evidence that the19 landfill is deterring growth, in your opinion?20 A I don't think there's, hypothetically -- I21 think what you are talking about is a redirection of22 growth, not necessarily a deterrence of growth, if I23 understand your question.24 In other words, you're saying that if a25 developer were to tell me that he's not developing a

Page 669

1 certain area because of the proximity to a landfill2 and would rather develop somewhere else?3 Q If he specifically stated that his reason for4 not developing his property closer to the landfill was5 because of the presence of the landfill.6 MR. RILEY: And just to be clear, we're7 speaking in a hypothetical sense here. Correct?8 MS. FARHADI: Correct.9 JUDGE SCUDDAY: Yeah.

10 A I worked with a lot of developers over the11 years. So, hypothetically, I would agree if that was12 told to me, that there's no reason not to take what13 the developer says at face value.14 Q (BY MR. FARHADI) Further on Page 18 of your15 testimony, on Line 21, you state that -- well, if you16 could read that question and answer there for me,17 please.18 A Starting on Page 18, Line 18? Is that19 correct?20 Q Yes, thank you.21 A Okay. "Question, what is your opinion and22 what are the bases for that opinion?" And what that's23 referring to, I guess, is --24 Q You can read the prior question and answer.25 That might clarify.

Page 670

1 A Okay.2 Q Thank you.3 A I'll start at 13. Is that correct?4 Q Yes?5 A Line 13. The question is, "Have you formed6 an opinion regarding whether the land use information7 contained in the application complies with and8 satisfies TCEQ rules."9 "Answer, yes, I have."

10 "Question, what is your opinion and what11 are the bases for that opinion?"12 "Based upon my knowledge of the TCEQ13 rules and my experience in preparing land use analyses14 based upon those rules, the land use information in15 the application was accurate at the time it was16 prepared, and it complies with and satisfies TCEQ17 rules."18 Q Okay. Thank you.19 A Yes.20 Q And by stating that it complies with and21 satisfies the TCEQ rules, this is essentially a22 reporting requirement. Correct?23 A Well, I was just trying to answer the24 question, you know, that was given to me, "Does it25 comply with and satisfy the rules," and the answer is



29 (Pages 671 to 674)

Page 671

1 "Yes."2 Q What do you have to do to comply with the3 rules?4 A We have to address the issues that we just5 talked about in 330.61.6 Q Correct. And those are all reporting7 requirements -- correct -- not any sort of opinion or8 analysis?9 MR. RILEY: Objection. They are not

10 reporting requirements. They are requirements of11 elements to be provided.12 JUDGE SCUDDAY: Yeah, they are --13 MS. FARHADI: I don't see how that's14 different, Your Honor.15 JUDGE SCUDDAY: Well, it is different.16 They just have to provide that information.17 MS. FARHADI: Submittal requirements.18 JUDGE SCUDDAY: Submittal requirements.19 Q (BY MS. FARHADI) Let me clarify. These are20 merely submittal requirements and not a requirement21 for an opinion or a conclusion. Correct?22 A I guess that's right. I just think about it23 as rules. This is what the rule says and this is what24 we do.25 Q Let's go to Page 19 of your prefiled

Page 672

1 beginning on Line 9, "the net effect." You state that2 the net effect of the expansion on land uses in the3 vicinity of the site is minimal?4 A That's correct.5 Q But you did not talk to any of the6 neighboring residents. Correct?7 A That's correct.8 Q You did not talk to any of the neighboring9 businesses. Correct?

10 A That's correct.11 Q Did you talk to anyone at the elementary12 school or daycare center?13 A I talked to the people in the elementary14 school and the daycare center. Yes, I talked to both15 of them.16 Q What did you talk to them about?17 A I asked their permission to go on their18 sites. That was my main reason for talking with them.19 Q Did you ask them anything about the effect of20 the land use -- sorry. Did you talk to them at all21 about the effect of the active landfill on their land22 use?23 A My concern was seeking their permission to go24 onto their sites.25 JUDGE SCUDDAY: Yeah, but that wasn't

Page 673

1 the question. Did you talk to them about the2 landfill?3 A About the landfill? I told them why I was4 going onto their sites and that I was working on5 behalf of one or both of these landfills in the6 vicinity, but I did not engage them in talking about7 their opinions about land use.8 Q (BY MS. FARHADI) Okay. Travis County went9 through a series of hypotheticals with you regarding

10 nuisances that you said could affect land use, if11 you'll recall. Did you research any of those12 nuisances before making the statement that the effect13 of the expansion would be minimal?14 MR. RILEY: Research the hypothetical15 nuisances?16 JUDGE SCUDDAY: Research the --17 Q (BY MS. FARHADI) The potential for those18 nuisances that you --19 MR. RILEY: Sorry. Thank you.20 Q (BY MS. FARHADI) -- said would affect the21 land use compatibility.22 A My opinion on that was based on the23 information included in that agreed order24 specifically.25 Q Could you clarify for me? I'm not following.

Page 674

1 A Well, the agreed order discussed nuisances,2 among other things. And it was my understanding that3 there was one -- I'm not sure what the term is, but4 I'm going to call it odor event. It was documented in5 2002.6 That was pretty much the extent of my7 knowledge about nuisances related to the operation of8 the site with the exception of those that I observed9 as I would travel through the area, which I've done

10 quite a bit, in and around the facility, No. 1, and,11 No. 2, listening to people's remarks and concerns at12 the meetings that I referenced earlier.13 Q Okay. But the public meeting was after your14 land use report was written. Correct?15 A I don't believe it was, not before the first16 draft or the second draft, probably.17 Q Did you modify it at all in response to the18 public meeting?19 A I modified it for a number of reasons. I20 don't remember specifically doing it for that, though.21 I think it was mostly to update land use.22 Q Correct. So you did not do any investigation23 into any of the nuisances or potential for nuisances.24 Is that correct?25 MR. RILEY: Objection, asked and



30 (Pages 675 to 678)

Page 675

1 answered.2 JUDGE SCUDDAY: Well, not exactly. Sort3 of answered -- it was sort of the same question, but4 it was slightly different. So you can answer.5 A The investigation I did regarding6 nuisances -- this isn't a hypothetical, is it?7 Q No.8 (Laughter)9 JUDGE SCUDDAY: No.

10 A -- was primarily based on my looking at and11 reviewing the agreed order, the penalty calculations12 associated with it, the inventory and analysis and13 time that I've spent out in this vicinity and the14 remarks and comments that I heard at public meetings15 both at the Travis County Courthouse and at the public16 hearing of a year ago.17 Q Did you perform any research in response to18 anything that you heard at either of those public19 meetings you just referenced?20 A I just took note of the concerns.21 Q Did you perform any research at the TCEQ's22 regional offices of their investigation or complaint23 files for this facility?24 A I just told you the extent of my analysis in25 that regard. It was to examine that agreed order that

Page 676

1 I believe was built on the TCEQ files.2 Q Now, on Page 13 of your prefiled beginning3 with the question on Line 24 -- are you on that page?4 A Yes, ma'am.5 Q You state that the facility is surrounded by6 existing landfill space. What do you mean by7 "surrounded"?8 A Well, that's probably not literally true.9 I've said this a number of other times. I've restated

10 it slightly differently throughout my testimony, and11 everywhere else I say "cradled." I think cradled is a12 better word than surrounded.13 Q What do you mean "cradled"?14 A What I mean is that there are -- this15 expansion is cradled, if you will, on the south by the16 existing 249C permit, and it is -- it abuts it. And17 it abuts the BFI Sunset Farms landfill to the east.18 That's what I mean by "cradles," primarily.19 But I would further point out that Waste20 Management also owns the land to the west as well.21 While not being landfill, it's certainly land that22 creates a buffer and is land that they control. So23 that's what I mean by "cradled."24 Q So, in this instance, you're referring to the25 expansion only and not the facility as a whole.

Page 677

1 Correct?2 A That's correct. But if you -- you know, you3 could -- even if you wanted to talk about the facility4 as a whole, then it's -- you know, I'm not sure I'd be5 using cradled anymore. But in answer to your6 question, yes, that's what I'm talking about. But7 there is the Travis County site for their --8 Q And that site is closed. Correct?9 A That's correct.

10 Q Mr. Worrall, I believe we've established you11 were also testifying at the BFI hearing. Correct?12 A Correct.13 Q That's the neighboring landfill that you were14 referring to as the other active landfill in this15 area?16 A Correct. I refer to it as Sunset Farms17 sometimes.18 Q Okay. And are you aware of the restrictive19 covenant that was filed which requires closure by 201520 regardless of whether or not the TCEQ issues a permit21 for that location?22 A I'm not cognizant of the details of that, no.23 Q Okay. Would that affect your land use24 analysis at all if that is true?25 A If what is true?

Page 678

1 Q If what I just stated about the restrictive2 covenant requiring closure by 2015 of the BFI Sunset3 Farms landfill is true.4 A And what you're suggesting to me is that that5 covenant exists, and that regardless of what happens6 at Sunset Farms it will close at that date?7 Q Yes. For the purposes of the rest of my8 questions I would like for you to consistently assume9 that BFI will close in 2015. Can you do that?

10 A Okay.11 Q Would that affect your land use analysis in12 this case at all?13 A Yes.14 Q How would it affect that?15 A Well, we would have a different land use16 category there at such time as it closed. Okay? Now,17 up to that point, it's not apparent to me that it18 would change it. The day it closes, my land use19 analysis would be outdated.20 Q Okay. And you state that it would be21 outdated. Would it factor into your opinion as to22 whether or not this proposed expansion is compatible23 with the surrounding land uses after 2015?24 A It may. It might factor into that. But the25 best example I could give you about it, I guess, would



31 (Pages 679 to 682)

Page 679

1 be the -- not the example -- but the way I would2 characterize it is that if it closes in 2015 per your3 suggestion or per your assumption that the use of the4 land would then revert to a former landfill,5 obviously. It would no longer be an active landfill,6 I guess, under these assumptions.7 And then from what I understand about8 the post-closure requirements, this would essentially9 become what I'm going to call from a land use point of

10 view permanent open space, probably. I don't know11 what BFI might do with it. My best guess would be12 open space that was formerly a landfill that will have13 to be monitored for 30 years.14 So it would not be potentially unlike15 what had happened to the south with the Travis County16 site that closed but it didn't turn into open space.17 And as far as I know, it's not monitored per these18 30-year post-closure. It rather became partially19 commercial land use.20 So that's how my land use analysis would21 change.22 Q Would it affect your analysis by the mere23 fact that the expansion would then be the only active24 landfill operation in this area?25 A Oh, perhaps slightly. But the thing that we

Page 680

1 would have to look at -- and the Judge was asking me2 about this before a little bit -- is, what factors3 would have to change in order for me to have a finding4 of incompatibility, let's say.5 That in and of itself wouldn't do it.6 In other words -- now, if you were to tell me that7 we're going to put a housing development on the Sunset8 Farms landfill, then I think we would have an issue9 there -- but -- in terms of compatibility.

10 But in terms of it being a closed site11 and -- I don't think that that would necessarily12 affect my conclusion.13 Q So it seems what I'm gathering from your14 testimony -- and tell me if this is correct -- that15 there are several factors that go into your opinion as16 to whether or not a municipal solid waste facility is17 compatible with surrounding land uses. Correct?18 A I would like to think that it's exceedingly19 complex.20 Q One of which is nearby residences. Correct?21 A That's correct.22 Q One of which is whether or not the facility23 is in compliance with TCEQ regulations. Correct?24 A Correct.25 Q One of which is the presence of other active

Page 681

1 landfills or the nonexistence of other active2 landfills. Correct?3 A Correct.4 Q One of which is the impact of odors on5 receptors. Correct?6 A Correct.7 Q As well as all the -- I guess we can go8 through each of the nuisances -- the impact of9 wind-blown waste or trash on receptors nearby.

10 Correct?11 A Correct. I'm not sure if that's properly12 classified as a nuisance. Maybe it is. Yes, correct.13 Q Would that factor into your -- be one of the14 many things that you consider when determining land15 use compatibility?16 A Yes.17 Q As is truck traffic on the roads nearby?18 A Yes. Although, that's getting a little bit19 beyond my expertise a little bit. And you're going to20 be able to talk to Mr. McInturff about that later.21 Q Is noise from the operations of a landfill22 also one of your considerations?23 A It's a concern, yes.24 Q Is visual aesthetics another one of your25 considerations?

Page 682

1 A It certainly is.2 Q Since we're on visual aesthetics, do you know3 if the facility is proposing any landscape4 enhancements as part of this expansion?5 A I'm not aware of specific landscape6 enhancements as a part of the expansion. I'm aware of7 other improvements that have been made to the -- you8 know, within the entire permit boundary that we were9 talking about, but not specifically related to the

10 expansion.11 Q And I believe you do, but let me ask you. Do12 you discuss revegetation at all in your analysis or13 testimony?14 A I don't believe I do.15 Q So that's not a part of your determination?16 A Well, in this case, it's not. No, I don't17 believe I have testimony in that regard.18 Now, I did prepare and Waste Management19 installed quite a few landscape improvements on the20 Giles Road frontage, and also on the -- I believe it's21 called the East Hill, but I don't think that's a part22 of my testimony. That was just some of my prior work23 with Waste Management.24 Q Do you know if anything that you proposed for25 Waste Management is for intermediate cover, or is it



32 (Pages 683 to 686)

Page 683

1 only for their final cover?2 A The work that I proposes, if I'm3 understanding your question, had to do with screening4 along Giles Road, No. 1, and it wasn't on the5 active -- you know, within the limit of fill. So it6 wasn't intermediate or final at all.7 And then the other series of8 improvements we suggested and they installed had to do9 with the installation of vegetation on the final cover

10 of the East Hill, and that's installed and in place.11 Q Okay. Staying on Page 13 of your prefiled12 testimony, the very next line beginning on 27, you13 state that the proposed expansion of the facility will14 not cause the landfill to be any closer to the most15 proximate existing residence.16 Is it not true that the expansion will17 move closer to existing residences?18 A That's true, but that isn't what that says,19 of course.20 Q Correct. Could you please clarify what that21 says for me as to how it's different from what I asked22 you?23 A There is -- well, I'm not sure what you24 asked.25 JUDGE SCUDDAY: What do you mean by

Page 684

1 "most proximate existing residence"?2 A What I mean is that that's the closest3 residence to the landfill, and that residence as4 stated in my report is to the southwest in a5 subdivision I could point to called Colonial Place.6 And prior to the expansion of this 249D,7 it was by my estimate 305 feet away from the permit8 boundary. And after this expansion, that most9 proximate -- that closest residence -- is still that

10 residence and we're not any closer to it.11 Q Could I have you turn to the City's prefiled12 testimony, Exhibit GG-3 for me?13 MR. RILEY: Is your prefiled testimony14 up here somewhere where we can --15 MS. FARHADI: Yes, there's a binder.16 JUDGE SCUDDAY: Look at that white17 binder there. Is that it?18 MR. RILEY: We have it.19 A Thank you. Where are you directing me to?20 I'm sorry.21 Q (BY MS. FARHADI) Yes. Exhibit GG-3.22 A Thank you. I'm there.23 Q So if you could look for me. Is the24 expansion area delineated on that as -- well, do you25 see the expansion area on this map?

Page 685

1 A I see a depiction of it.2 Q And --3 A I'm not sure it's entirely accurate.4 Q It's an approximation. Correct?5 A Yeah. Okay. Great.6 Q Would you agree that that expansion area will7 move closer to what is labeled at the top of the page8 "The Pioneer Crossing PUD"?9 A Yes, I do agree to that.

10 Q Thank you.11 A To clarify, could I volunteer something on12 this that might help answer your question and the13 Judge's question?14 Q Which question?15 A He asked me about what you and I meant by16 "most proximate house" --17 Q Sure.18 A -- or residence. You can see -- if you go to19 the southwest, what's labeled, it looks to me like,20 665 feet, that's the most proximate residence, I21 believe.22 In my testimony, I indicated that was23 305 feet which is my estimate from the permit24 boundary. And what you see here is the estimate25 provided by the City of Austin that's from the edge of

Page 686

1 fill, I believe.2 JUDGE SCUDDAY: So it won't be any3 closer to that, but it would be closer to Pioneer4 Crossing?5 A Pioneer -- that's correct.6 Q (BY MS. FARHADI) Okay. Mr. Worrall, on --7 I'm flipping again within your prefiled testimony to8 Page 18, Line 8 --9 A Yes.

10 Q -- where you state that you're of the opinion11 that the proposed expansion is compatible with growth12 trends in the area. You state that the landfill is13 consistent with the city of Austin growth management14 plans and policies.15 A That's my interpretation, yes.16 Q Does it surprise you then that the city is17 protesting this application.18 A I think I was more surprised in 1990 that the19 city didn't protest it, probably.20 Q So you were not surprised that the city is21 now protesting this application?22 A No, I'm not surprised.23 Q Do you believe that you are a better judge of24 what's consistent with the city's plans and policies25 than the city itself?



33 (Pages 687 to 690)

Page 687

1 MR. RILEY: Objection.2 MS. FARHADI: What's the basis of the3 objection?4 JUDGE SCUDDAY: What's the basis of the5 objection?6 MR. RILEY: The city is a large place.7 It has many individuals associated with it. Are we8 really talking about a referendum? Are we talking9 about the city of Austin government or an individual?

10 It seems as though you are pitting11 against an institution against an individual and12 asking a question, it seems to me, loaded with the13 notion that one is superior to the other in terms of14 an opinion based on a written policy.15 MS. FARHADI: The city of Austin as a16 whole is protesting this application -- not an17 individual.18 MR. RILEY: The city of Austin as an19 institution of government is protesting this20 application --21 MS. FARHADI: Correct.22 MR. RILEY: -- not as a whole in the23 sense of each individual in the city.24 JUDGE SCUDDAY: Right. The city of25 Austin has established growth management plans and

Page 688

1 policies. The question is, I guess, Mr. Worrall, do2 you feel like the city of Austin is better qualified3 to determine whether this is consistent with those4 policies than you are? I'll allow you to answer that5 question.6 A Thank you. I think with respect to the very7 particulars of the expansion of a landfill that I am8 quite expert in that.9 On the other hand, I think the city of

10 Austin is certainly most capable and adept and expert11 at its growth management plans and policies.12 So my suggestion is that it's my opinion13 based on my independent research and understanding of14 the landfill and the zoning and the growth trends and15 all the things we talked about, it's my opinion that16 it is also consistent with city of Austin growth17 management plans and policies?18 MS. FARHADI: I'm going to object as19 nonresponsive, Your Honor.20 JUDGE SCUDDAY: I don't think it's21 relevant. I mean, it's his opinion. We know what the22 city's opinion is. That's his opinion that it does23 and it's the city's opinion that it doesn't. So what24 difference does it make?25 MS. FARHADI: Your Honor, I was just

Page 689

1 trying to establish --2 JUDGE SCUDDAY: I know. You want the3 city to be clear that the city is in charge of its4 policies. The county is in charge of its policies.5 The ED is in charge -- we all recognize that. You6 don't have to establish that. I know the city's7 position.8 MS. FARHADI: I just wasn't clear if the9 witness agreed with that.

10 JUDGE SCUDDAY: That he just felt in his11 opinion it was consistent. The city obviously doesn't12 think it's consistent, and I recognize that.13 MS. FARHADI: Thank you.14 MR. RILEY: If we followed the same15 logic, Judge, we wouldn't be sitting here today16 because the TCEQ has rendered its opinion --17 JUDGE SCUDDAY: No, the ED has rendered18 its opinion.19 MR. RILEY: I understand where you're20 coming from.21 Q (BY MS. FARHADI) Mr. Worrall, you talk a lot22 about the fact that the historical use of this area23 has been for landfill use. Correct?24 A Among other things, yes.25 Q Do you agree that prior use does not in and

Page 690

1 of itself mean that future use in the same capacity is2 compatible?3 A I agree that's not the only consideration.4 Q In fact, wouldn't it follow that the5 residences you've just identified such as the Pioneer6 Crossing PUD, in fact, is there before this expansion7 if this expansion does occur?8 A That's true.9 Q I would like to go to the conclusions that

10 you draft as part of your report. It's in the11 application as APP-2, and it's also attached to your12 prefiled testimony, I believe, as APP-302.13 A Okay.14 MS. FARHADI: I'm within the15 application, and it's on Technically Complete Page16 179. It's the conclusions page, right before the maps17 begin.18 MS. COX: I believe it's on Page 8 of19 APP-302.20 JUDGE SCUDDAY: Page 8. That's right.21 MR. RILEY: Page 8? I'm sorry.22 JUDGE SCUDDAY: Yeah, it's page 8 of23 302.24 A I'm on Page 10, Your Honor.25 Q (BY MS. FARHADI) Well, it depends. Are you



34 (Pages 691 to 694)

Page 691

1 in the application or the prefiled?2 JUDGE SCUDDAY: Page 10 of 302. All3 right.4 A APP-302, Page 10, is what I'm looking at.5 JUDGE SCUDDAY: It says "Conclusions" at6 the top.7 Q (BY MS. FARHADI) And these conclusions sum8 up why you feel this is a compatible land use.9 Correct?

10 A That's correct.11 Q Okay. Let's go through these.12 JUDGE SCUDDAY: We've kind of already13 done that.14 MS. FARHADI: I have some different15 questions, Your Honor.16 MR. RILEY: Well, it's 12:15. There's17 different questions -- I understand -- but how long18 are we going to go before we decide to --19 MS. FARHADI: We can take a break.20 JUDGE SCUDDAY: No, we're not going to21 take a break. We're going to at least get through22 this. So go ahead.23 MS. FARHADI: Thank you.24 Q (BY MS. FARHADI) Okay. On No. 1, you talk25 about -- that it abuts the two active landfills which

Page 692

1 we have discussed.2 A Yes.3 Q You state that the expansion itself does not4 represent a significant change in area land use5 relationships.6 A That's right.7 Q Does that the conclusion take into account8 what I have asked you to consider as part of my9 questioning that BFI will cease operations on

10 November 1, 2015?11 A Well, obviously, the conclusion would change,12 because then it would say because the 71 acre13 expansion site abuts one active landfill and one14 inactive landfill. But other than that --15 Q Let me try and rephrase the question,16 Mr. Worrall.17 A Okay. Thank you.18 Q Will the expansion represent a significant19 change in area land use relationships after 201520 assuming the closure of BFI in 2015?21 JUDGE SCUDDAY: Expansion is going to22 occur before 2015. You're asking if it would be a23 significant change after 2015?24 Q (BY MS. FARHADI) Will the existence of the25 expansion area as an active MSW facility be a

Page 693

1 significant change once BFI is closed in 2015?2 A I don't think it's going to make a very big3 change, and I'll try to be explicit as to why that is4 the case. It's because access to this site is going5 to continue to come from Giles Road.6 One of the big concerns we have is7 traffic and noise and litter and many of the things8 that you've talked about before. That access will not9 change. So we are going to continue to keep that

10 access relationship, which is a land use decision.11 That's going to remain the same.12 So I don't think that's going to change.13 And, moreover, the land that's been plotted there for14 this is for bids that we get access from Springdale.15 So as an example of what you're asking,16 my answer would be, is if we could access this17 expansion, let's say, from Springdale that, yeah, that18 probably is going to result in changes in area land19 use relationships.20 But because it's grafted onto an21 existing landfill and its access is from the same22 direction, just to name two reasons why I don't think23 it will change, I don't think it will change.24 Q So is your statement, then, talking about a25 significant change in area land use relationships

Page 694

1 based upon traffic -- in-flows and out-flows of the2 landfill?3 A You know, I preface that by saying that that4 was one example. So if you're going to have me --5 Q I would like to know what your other reasons6 are, yes, please.7 A Okay. My other reasons are that -- I'm8 sorry. I got a little hot and bothered there. I9 don't understand your question. I forgot it. That

10 is, you say assume with me that we're in 2016. Okay.11 Is that right?12 Q Yes.13 A Technically a year, and that the BFI landfill14 we're looking at has been closed and how would that15 change my opinion. Is that right?16 Q Yes, with regard to that last half of17 sentence No. 1 -- or Point No. 1.18 MR. RILEY: Well, then, I have to ask19 for a clarification. Are we also assuming the20 expansion has been granted and that there is fill21 occurring in the expansion area? Is that the --22 MS. FARHADI: Yes.23 MR. RILEY: Complete hypothetical?24 A I don't honestly believe that it changes my25 conclusions very much, because what we now have is an



35 (Pages 695 to 698)

Page 695

1 ACL landfill that is surrounded -- not surrounded --2 excuse me -- probably not cradled but buttressed3 between an inactive landfill to the south and an4 inactive landfill to north.5 So from that point of view, I don't6 think that would matter. Another thing that I don't7 think would matter is that if we assume that the BFI8 landfill closes and is closed by 2016, my recollection9 of that proposal is that it would go to 795 feet MSL

10 at its highest point.11 Our highest point in this proposed12 landfill here today, as I understand it, is13 approximately 740 MSL. So we're going to be in the14 shadow of, if you want to characterize it that way, of15 what is now a closed landfill as opposed to an open16 landfill.17 Q (BY MS. FARHADI) Let me ask a follow-up18 question on that --19 MR. RILEY: May the witness finish his20 answer.21 JUDGE SCUDDAY: He can finish his22 answer.23 A So those are two reasons. Okay? And then I24 talked about the traffic and why I think that that's25 not going to, you know, engender land use changes

Page 696

1 because the traffic patterns are going to be the same2 as they are now.3 And another factor I would say that's4 related to the traffic and the land use is that when5 BFI closes in 2016, my presumption is that that solid6 waste that would have gone there is still going to go7 somewhere else.8 So that somewhere else could very well9 be the adjoining landfill. So now we have one

10 landfill accepting the waste instead of two right next11 to each other. I don't think as a result that we are12 going to see a significant change in the traffic13 issues and, therefore, the land use.14 Q If I may ask a few follow-up questions. Are15 you stating that WMI's waste acceptance rate you16 believe will increase upon closure of BFI?17 A I don't know. I don't know that.18 Q Also, you talked about the mean sea level as19 the height of the BFI closed facility and the20 projected height of the expansion area.21 A That's right.22 Q Do you know what the mean sea level is of23 Pioneer Crossing PUD development?24 A No, I don't know.25 Q Would it impact your opinion if it is at the

Page 697

1 same -- if it is at a higher mean sea level than the2 land in between it and the expansion?3 A I don't understand that question.4 Q If the mean sea level of the Pioneer Crossing5 PUD development is at a higher elevation or mean sea6 level, if you will, than the land separating it from7 the proposed expansion area --8 A No. That doesn't -- I mean, that may impact9 my decision, but that isn't what you were starting to

10 ask me about. You asked me to reflect on what would11 happen in 2016 when BFI closes. So that was the12 answer I was giving you there. Now you're saying --13 Q I'm just following up on reasons you gave.14 A Okay. Thank you for doing that. So now15 you're asking me, do I know the mean sea level of16 Pioneer Crossing. My answer is, "No, I don't."17 Q Okay. Moving along to Item No. 2, you state18 that one of your reasons for compatible land use is19 that this site has been permitted since 1974.20 Correct?21 A That's what it says, yes.22 Q And I believe we've discussed how that in and23 of itself is not a factor. Is that correct? I24 believe we stated that -- let me get it correct.25 A Okay.

Page 698

1 Q That prior use does not in and of itself mean2 that a use is compatible.3 A Well, if that's what I meant when I said4 that, then I guess we've established that -- what --5 that it doesn't matter? Well, I'm sorry. You lost me6 on that connection.7 MR. RILEY: I understand your8 preference, Judge. We've been going for several hours9 straight. It's now midway through the noon hour. If

10 there's a lot more --11 JUDGE SCUDDAY: I didn't realize12 Ms. Farhadi was going to --13 MS. FARHADI: Your Honor, I can be done14 by 1:00. I can be done within 45 minutes.15 JUDGE SCUDDAY: Within 45 minutes, to go16 through these --17 MS. FARHADI: I have no preference if18 you want to break or not.19 JUDGE SCUDDAY: All right. Then let's20 break for lunch. We're going to take an hour today.21 So go eat and get back.22 (Luncheon recess: 12:20 p.m. to23 1:30 p.m.)2425



36 (Pages 699 to 702)

Page 699

1 AFTERNOON SESSION2 WEDNESDAY, APRIL 1, 20093 (1:30 p.m.)4 JUDGE SCUDDAY: Okay. Ms. Farhadi?5 MS. FARHADI: Thank you, Your Honor.6 PRESENTATION ON BEHALF OF7 WASTE MANAGEMENT OF TEXAS, INC. (Cont'd)8 JOHN WORRALL,9 having been duly sworn, testified further as follows:

10 CROSS-EXAMINATION (Cont'd)11 BY MS. FARHADI:12 Q Mr. Worrall, I believe where we left off was13 the conclusions portion of your land use analysis.14 A Okay.15 Q Do you have that in front of you?16 A APP-302.17 JUDGE SCUDDAY: Page 10.18 A Page 10. I'm there.19 Q (BY MS. FARHADI) Thank you. I believe we20 had just finished discussing Item No. 2 in your list21 of conclusions for your opinion.22 A Okay.23 Q Item No. 3, I believe we've already addressed24 this -- correct -- with your testimony about the25 expansion not getting any closer to the existing

Page 700

1 closest residence, but it will get closer to Pioneer2 Crossing. Correct?3 A That's correct.4 Q Let's go down to Item 5 --5 A Okay.6 Q -- where you state that the landfill is7 classified as an industrial use and it's located in an8 historically industrial corridor.9 I believe you also -- there's been a lot

10 of discussion with Ms. Cox from the county and it's11 also in your report and prefiled that the type of12 growth patterns for at least the last 10 years is13 predominantly residential in this area. Correct?14 A No. The only growth patterns we talked about15 are residential growth patterns. I haven't analyzed16 industrial or nonresidential growth patterns.17 Q I believe you testified earlier today that in18 the last 10 years residential growth patterns in this19 area has been robust.20 A Yes. Yes, ma'am.21 Q And is your projection that at least through22 the Year 2017 that growth would continue?23 A That residential growth, that's correct.24 Q Okay. So would you agree that it's becoming25 an increasingly residential area in use?

Page 701

1 A Yes, I think that's a good way to say it.2 Although, I would really say it's becoming a more3 urban area. You know, we talked about it urbanizing.4 I don't disagree with what you say, but5 I would say that there's also likely to be continued6 commercial and industrial, along with residential as7 well.8 Q Are you aware of any new industrial9 development proposed for this area?

10 A Not specifically, no. Well -- no. There's11 certainly new office development proposed in --12 developing prominently at the Mueller Redevelopment13 Airport site, which is five miles to the -- what would14 it be -- the southwest of us?15 Q I'm sorry.16 A I'm not aware of any specific industrial17 proposals.18 Q So that would be commercially use that you19 are referring to, down by the Mueller Redevelopment20 area?21 A Well, it's actually employment in office is22 the best way to say it. It's neither commercial nor23 industrial by my classification.24 Q That's a good point. Are you familiar with25 how many major employers there are within the

Page 702

1 five-file radius of this facility?2 A Yes, I am. But it's --3 Q Is it in your report?4 A It's in my report, yes.5 Q Could we go to that page?6 A Sure. APP-302, Page 15, 1-5.7 Q Could you take us through that, please? What8 are your findings there?9 A Well, this is essentially published by the

10 Chamber of Commerce -- Austin Area Chamber of11 Commerce -- Greater Austin Area Chamber of Commerce12 data.13 I'd be happy to go through it point by14 point, although I don't know them all specifically.15 This is information I received from the Chamber of16 Commerce. Why it's included here is that -- one17 reason that Austin growth has been as robust as it has18 is because we continue to create jobs.19 And as long as we continue to create20 jobs and have major employers, we would expect that21 the residential growth would track with that,22 generally speaking.23 Q So how many major employers have you24 determined are within the five-mile radius of this25 facility?



37 (Pages 703 to 706)

Page 703

1 A I haven't counted them. I don't know2 specifically.3 Q What page were you on, again? I'm sorry.4 A The list I'm looking at from the Chamber of5 Commerce is APP-302, Page No. 1-5.6 Q So if I were to count these, would this be7 accurate, in your opinion?8 A Oh, I think representative is probably a9 better way to say it. You know, again, I'm using this

10 as an indicator of why I believe continued strong11 residential growth will occur. It's so much12 employment driven.13 Q Correct. And if I were to represent to you14 that there are approximately 43 employers on this list15 that you've supplied, would that seem accurate to you?16 A Yes, that would be fine.17 Q And are you familiar with the transportation18 infrastructure surrounding this facility?19 A In general, yes.20 Q And the new -- or Highway 290?21 A I'm aware of the proposals, generally, yes.22 Q Okay. And what is your knowledge regarding23 the transportation infrastructure surrounding this24 facility?25 A Well, I'm familiar with all the area roads as

Page 704

1 they currently exist. I'm aware of some roadway2 plans, and I'm generally aware of the proposal to3 upgrade U.S. 290. But, frankly, we have a traffic4 expert. So that's --5 Q Right. My question to you more goes towards6 with regards to land use. Would you agree that for7 land use to develop proper transportation8 infrastructure is a necessity?9 A Yes. There's a strong relationship between

10 land use and transportation.11 Q Okay. Going back to your list of12 conclusions --13 A Yes.14 Q -- item No. 7 --15 A Okay.16 Q -- where you state that municipal and17 regional growth policies suggest that the facility is18 sited consistent with major goals and concerns.19 A Yes.20 Q Let's start with the municipal growth21 policies.22 A Okay.23 Q Can I direct you to City of Austin Exhibit24 JW-3?25 A I've got that. It's a resolution. Is that

Page 705

1 correct?2 Q Yes. Have you seen this resolution before?3 A Yes, I have.4 Q Okay. Were you aware of this resolution5 prior to developing your prefiled testimony, or your6 land use report -- sorry. First question, were you7 aware of it prior to developing your land use8 analysis?9 A I honestly don't recall which came first.

10 Q Okay. How about for your prefiled testimony?11 A Same answer. I'm sorry.12 Q Can you read the third "Whereas" clause in13 that resolution for me, please?14 A The third "Whereas" says, "Whereas, future15 growth patterns surrounding the subject landfills are16 not conducive to the operation of Type I municipal17 solid waste facilities.18 Q If you could continue down through that next19 paragraph, please.20 A "Now, therefore, be it resolved, that the21 City Council of the City of Austin opposes both the22 Waste Management landfill and the Allied BFI landfill23 expansion applications as filed."24 Q Okay. Did you consider this resolution from25 the City of Austin before making Conclusion No. 7?

Page 706

1 A As I said, I didn't really -- I couldn't tell2 you what order I did them in. So I guess the answer3 would have to be "No."4 Q Okay. After having read it now, would it5 change the municipal portion of Conclusion No. 7?6 A It doesn't change my opinion as to the7 compatibility, my findings of compatibility, on the8 one hand, and the City of Austin resolution on the9 other.

10 My reason for saying that is the second11 "whereas" in this document. It says, "Whereas, both12 subject landfills are adjacent to many homes, schools13 and other sensitive receptors without sufficient land14 buffers." I do not think that is an accurate15 statement.16 I think that that, as a result, to my17 mind, made the resolution not necessarily properly18 predicated.19 Q Are you stating that this is not the policy20 of the City of Austin?21 A No.22 Q Let's talk about the regional growth policies23 that you discuss in Conclusion No. 7.24 A Okay.25 Q I know that today, at least, you've reviewed



38 (Pages 707 to 710)

Page 707

1 and discussed a lot, the CAPCOG determination letter2 for this facility. Correct?3 A Yes, ma'am.4 Q Is it correct to assume that you did not use5 that in consideration when making --6 JUDGE SCUDDAY: We've already had --7 Q (BY MS. FARHADI) -- Conclusion No. 7?8 JUDGE SCUDDAY: We've already discussed9 that inexhaustively.

10 MS. FARHADI: That's it. I'll pass the11 witness.12 JUDGE SCUDDAY: Mr. Friedman?13 CROSS-EXAMINATION14 BY MR. FRIEDMAN:15 Q Mr. Worrall, you concluded that the expansion16 of this facility is compatible with the surrounding17 land uses in your prefile?18 A Yes, sir.19 Q Your determination is based on characterizing20 the surrounding land uses to the facility?21 A That's partially true, yes. That's a factor22 and an important factor.23 Q To do that you observed and documented the24 land use in the vicinity?25 A Yes, sir.

Page 708

1 Q In that process, was contact ever made with2 any local residents or business owners?3 A Not explicitly, no.4 Q So there was never any communication with the5 Barr Mansion owners?6 A That's correct.7 Q You're not aware whether you can see the8 land -- the Waste Management facility from the Barr9 Mansion property?

10 A At times of the year I'm quite sure you11 can't -- certainly in the summer. But I haven't done12 a visual analysis. So I couldn't tell you precisely13 if at all times you could or couldn't see it. I know14 at times you cannot.15 Q But you don't know whether at times you can?16 A That's correct.17 Q And Aesthetics is one of the variables18 considered in land use determination?19 A I'm not sure it's actually literally in the20 rules. I could be wrong about that, though.21 Q Did you testify earlier that aesthetics is22 something to be -- I believe you said it was certainly23 considered?24 A It is on my part. I'm just not sure that the25 TCEQ considers that.

Page 709

1 Q Okay. You don't know Mr. Evan Williams, do2 you?3 A I know the name, but I don't know the person.4 Q And he's a local property owner. Actually,5 his property directly abuts Waste Management. You6 never spoke with him in your determination of land7 use, did you?8 A No, not to my knowledge.9 Q You testified earlier that -- and in your

10 prefiled extensively -- that deterrents of growth is a11 variable that you considered for compatibility?12 A Well, I felt that growth had not -- right --13 opined that growth had not been deterred and was not14 deterred by the presence of the landfills.15 Q Without speaking with Mr. Williams, you're16 not aware of whether or not he is precluded from17 developing his property based on the nearby landfill?18 A I don't have that knowledge. That's correct.19 Q Mr. Worrall, if you want to turn to your20 prefiled testimony on Page 13.21 A Yes, sir. I'm there.22 Q On Line 6 you testify that the facility does23 not represent -- I'm sorry. Let me make sure I've got24 the right page here.25 In your prefiled you testified that the

Page 710

1 proposed expansion of the facility will not cause the2 landfill to be any closer to the most proximate3 existing residence or business establishment or4 historic site within one mile of the facility. Is5 that still your testimony?6 A I believe so. Are you quoting from a7 particular location there?8 Q Well, I am.9 JUDGE SCUDDAY: It's Line 28.

10 A On that same page? Yeah. Sure, that's what11 we talked about before. Yes, sir, I agree with that.12 Q (BY MR. FRIEDMAN) Is it your opinion that as13 long as the expansion doesn't come closer than the14 already existing closest building that it's not a15 concern?16 A No, that's not my testimony. But I think17 that my testimony -- what I'm trying to get at here is18 that this a very unusual expansion in the sense that19 it's a lateral expansion; nevertheless, it's not20 getting closer to any of these land uses of concern.21 I just find that unusual and so I noted it.22 Q It just seems to be an integral piece of your23 determination the proximity of getting closer. Is24 that because as the landfill gets closer to a25 structure the nuisance concerns may intensify?



39 (Pages 711 to 714)

Page 711

1 MR. RILEY: Objection, the form of the2 question. It's counsel's opinion that it just seems3 that it's a critical element when the witness just4 testified --5 JUDGE SCUDDAY: Just rephrase your6 question.7 Q (BY MR. FRIEDMAN) Let me ask you,8 Mr. Worrall. Is proximity to these sites an integral9 piece of your determination of land use compatibility?

10 MR. RILEY: Objection to "these sites."11 Which sites are we referring to?12 MR. FRIEDMAN: In the prefiled13 testimony, staying with what we just read, existing14 school, daycare center or historic sites, residences,15 are those sites becoming closer to the landfill an16 integral piece of your determination?17 MR. RILEY: Is this case, the witness18 testified they will not, but I assume that's the19 counsel's question.20 JUDGE SCUDDAY: Mr. Riley, he's just21 asking him if he thinks that -- he says the most22 proximate existing residence or business establishment23 or to any existing school, daycare center or historic24 site within one mile of the facility.25 And as I understand, the question is,

Page 712

1 does he consider this -- I forget the term, but,2 anyway -- a factor.3 MR. FRIEDMAN: An important factor.4 MR. RILEY: I have no objection to that5 question.6 JUDGE SCUDDAY: Because I asked it?7 MR. RILEY: Yes, that's my primary8 reason, but it was said more clearly as the others.9 A The proximity to particular land uses are of

10 particular concern of the TCEQ, and it's highlighted11 in that 330.61 that we talked about before.12 That's my first and foremost reason why13 I paid particular attention as the rule suggests to14 the distance and direction to the nearest residence15 and the distance and direction to these other land16 uses.17 So that's why, in particular, that I18 discuss it here.19 Q (MR. FRIEDMAN) If the landfill is, in fact,20 getting closer, that is a concern?21 A It is in the sense that the proximity would22 be reduced.23 Q Okay. Can you turn to your report? I24 believe it's labeled APP-302, and that's Page 24.25 A Okay. Yes, sir, I'm there.

Page 713

1 Q And you see on this map the dotted line that2 represents the expansion area?3 A Yes, sir.4 Q And you would agree with me that that's a5 northwest expansion of the facility or an expansion to6 the northwest?7 A Well, I'll agree with you. It actually looks8 more northerly, but let's just say northwest. That's9 fine.

10 Q And now will you locate the structure that is11 identified with an H and an asterisk that's red?12 A Yes, that's the Barr Mansion. That's the13 indication of the Barr Mansion.14 Q Would you also agree with me that that is a15 northwesterly location from the current Waste16 Management of Texas facility?17 A Sure. Yes.18 Q The distance between the Barr Mansion and the19 expansion -- let me rephrase that. The expansion is20 bringing the facility directly closer to the Barr21 Mansion.22 A It's explicitly not, sir. The reason that23 that boundary looks the way it does is at least in24 part so that it does not get closer to the Barr25 Mansion. And if we measure that, I think you will see

Page 714

1 or we can demonstrate that it is, in fact, not as2 close to the Barr Mansion as the existing 249C permit3 is. In fact, that's one reason the configuration of4 the site is the way it is.5 JUDGE SCUDDAY: You're saying the6 expansion is not closer to what's marked as H?7 A Yes, sir. That's exactly what I'm saying.8 MR. FRIEDMAN: Yeah, we're going to have9 to spend a little time on this.

10 JUDGE SCUDDAY: You're going to have to11 explain that, because it looks closer to me.12 A Okay. I would be happy to do it. I'll tell13 you the procedure we went through to do that. First14 of all, you just simply take a protractor, if you15 will. You stick the point on the Barr Mansion and you16 stick it on the closest point of 249C, and then you17 strike a radius up, if you follow me, and you'll see18 that it's not as close as that expansion.19 Now, I would be happy to estimate those20 two instances just to assure --21 JUDGE SCUDDAY: Well, let me ask you.22 The 249C, are you saying that is all the way to the23 part that's all the way to Springdale Road?24 A Yes, sir. That purple hatched --25 JUDGE SCUDDAY: All right. Okay.



40 (Pages 715 to 718)

Page 715

1 A Yeah. If I might, if I measure from that2 asterisk to that portion of 249C that is on Springdale3 Road, I get exactly an inch-and-a-half. We can scale4 it up however you want or the way we want to.5 JUDGE SCUDDAY: Okay.6 A And if I go from that asterisk to the closest7 point of the expansion, I get nothing that's closer8 than 1.7 inches. So we can do the math on it. But9 I'm quite confident that we are not getting closer to

10 the Barr Mansion.11 Q (BY MR. FRIEDMAN) So the expansion won't12 bring the facility any closer than the closest point13 already existing?14 A That's right.15 Q You would agree with me that there's going to16 be a larger piece of this property much closer to the17 Barr Mansion than currently exists. Let me say18 current part of the facility as opposed to the current19 part of the property will be much closer?20 A I'll agree with you. I think what you are21 saying is a little vague; whereas, what I'm saying is22 very precise.23 JUDGE SCUDDAY: I'll say it.24 A Okay.25 JUDGE SCUDDAY: Based on where the

Page 716

1 existing cells are that are currently being2 utilized -- okay -- is the expansion not closer to the3 Barr Mansion --4 A I do not know the answer to that, sir. I5 didn't measure it from the limit of fill. I did it6 from the permit boundary.7 JUDGE SCUDDAY: Okay.8 Q (BY MR. FRIEDMAN) Mr. Worrall, if you could9 please turn your attention to the technically complete

10 version, which is Volume 1, Page 174 of the permit11 application.12 JUDGE SCUDDAY: What page?13 MR. FRIEDMAN: 174. It's the table14 LU-1, land use within one-mile.15 A Yes, sir.16 MR. RILEY: Hang on a second.17 Q (BY MR. FRIEDMAN) Is it labeled at the18 bottom of your page on the bottom left growth trends?19 A Yes, it is.20 Q And this was a document that was created in21 2006. It looks like it was revised in September of22 2006.23 A That's what I read, yes.24 Q At the top of that page there's a chart where25 there are different land uses broken down in

Page 717

1 percentages within one mile of the facility.2 A Yes, sir, I see that.3 Q In the residential at this time in 2006, it's4 indicated that 8.4 percent within one mile was used as5 residential.6 A I see that, yes.7 Q Can you tell me, generally -- first, is this8 a document you created, or is this a document that was9 created by the Capitol Market Research --

10 A No, I created this.11 Q Tell us why you break down in percentages the12 various land uses.13 A I think it helps us to talk about them and14 try to do so in a more quantitative way. That's the15 reason why.16 Q Would you agree with me that the percentage17 assigned to a particular use represents the importance18 or...19 A It just represents the acreage as a20 percentage. It's simple acreage math, you might say.21 Q In the revised version of this report, which22 is page -- which is attached as Exhibit APP-302,23 Page 4, that we looked at earlier --24 A Yes.25 Q -- the percentage assigned to residential was

Page 718

1 10 percent.2 A Yes, sir.3 Q The time between these two documents that4 were made was a little over two years.5 A That's correct.6 Q Does the increase in percentage in those two7 years, that didn't impact your decision on8 compatibility in this case, did it?9 A Not explicitly, no, sir.

10 Q Well, explain to us how we know at what11 percentage point compatibility becomes an issue. I12 know we touched on this earlier with number of13 homes -- tens of thousands or ten thousand -- but with14 percentages, which is your mark, how do we know at15 what percentage compatibility becomes a concern?16 MR. RILEY: Objection, if the suggestion17 is that percentage is a marker in the context of18 determining when something becomes not compatible.19 JUDGE SCUDDAY: Establish that that's20 such are marker.21 Q (BY MR. FRIEDMAN) You break down residential22 use into percentage. Is that to assist you in your23 determination of compatibility?24 MR. RILEY: Objection, asked and25 answered. He asked him why he did it, and the witness



41 (Pages 719 to 722)

Page 719

1 has answered "It helps to discuss."2 JUDGE SCUDDAY: Well, he can ask him3 if -- this is a follow-up to that.4 Q (BY MR. FRIEDMAN) Mr. Worrall, you can5 answer the question, if you used percentage to assist6 you in your compatibility determination.7 A There's -- if I might, there's three things8 on that table in any given line. One is area and9 acres. The next is percentage. It's obvious how that

10 gets calculated, I'm quite confident, and the third11 thing is remarks.12 So there are -- and in the case of13 residential, if you go from one table to the other14 you'll see that we -- in the 2006 report, it said15 there were -- we had counted 1183 residential units,16 and that as of 2008 we had counted 1447. And then, of17 course, there's an acreage associated with that. And18 then finally you get a percentage as a result of that.19 So the percentage is just another way of20 understanding it. I don't think that the percentage21 in and of itself -- I mean, it's just another unit of22 measurement, I guess.23 Q I agree with you. That's another24 measurement. I'm asking you if that measurement is an25 influential factor for your determination of

Page 720

1 compatibility?2 A It's certainly something to consider in terms3 of, you know, what percentage residential is this4 area. You know, is it overwhelmingly? Is it more5 than half residential, or is it less than half? Is it6 10 percent? Is it 15 percent? So certainly that's an7 issue.8 But as we discussed before this morning,9 another issue is proximity, and we've talked about

10 proximity here now to. And then there's other issues11 that have to be examined on a case-by-case basis. So12 in this case, you know, there's other issues as13 well -- not just percentage.14 Q So it's just one issue. Are we to take that15 70 percent of the land use as open? Are we supposed16 to take anymore weight with that factor than we are17 that it's 10 percent residential, in your opinion?18 A Open land uses and in various situations19 there's different classifications of it. Let's say20 just "open." That's what we're calling it. Open land21 uses don't generally present themselves as sensitive22 land uses vis-a-vis landfills as much as others,23 including the residential and daycare and the other24 things.25 Q I understand. I didn't ask you to define why

Page 721

1 open space is important to your determination. I want2 to know if the percentage next to these uses are to be3 given different weight depending on the percentage4 number.5 A I would weight them based on the numbers as6 they are. I mean, I would weight them 100 percent.7 Q If the residential percentage were to8 increase to 40 percent, would that impact your9 determination on compatible land use?

10 A Yes, I'm sure it would. But there would have11 to be other factors I would have to know based on the12 hypothetical situation.13 Q If I remember correctly from earlier14 testimony, Capitol Market Research actually computed15 an estimation of growth until 2017?16 A Yes, sir.17 Q They had done that within a five-mile radius?18 A That's correct.19 Q They didn't convert the number of households20 into percentages? It's APP-302, Page 21, is the21 document.22 MR. RILEY: I guess my question is,23 Judge, to ask counsel to clarify percentages of what?24 MR. FRIEDMAN: Percentage of home25 increase from --

Page 722

1 MR. RILEY: From a --2 JUDGE SCUDDAY: Well, that's not what3 these percentages are.4 MR. FRIEDMAN: I'll withdraw that.5 Q (BY MR. FRIEDMAN) Let me go back to the6 question. The Capitol Market Research firm computed7 an estimated household residential unit growth until8 2017?9 A Correct.

10 Q Was that same estimation made for within one11 mile?12 A No, sir.13 Q Would that be a -- would comparing the growth14 within the five-mile radius -- the expected growth15 within the five-mile radius compared to the growth16 within a one-mile radius be a good source of17 deterrents of growth?18 MR. RILEY: Objection. I don't19 understand the question.20 JUDGE SCUDDAY: I'm not -- yeah. I'm21 not sure you're saying that right, Mr. Friedman.22 Q (BY MR. FRIEDMAN) If you had an expected23 household unit growth until 2017 --24 A Yes, sir.25 Q -- would you be able to determine what



42 (Pages 723 to 726)

Page 723

1 percentage -- let me withdraw. Is it possible that2 the land use will become 40 percent residential by3 2017?4 MR. RILEY: Just the boundary. All I5 ask for is a boundary. Within what area?6 JUDGE SCUDDAY: What radius?7 Q (BY MR. FRIEDMAN) Within the one-mile8 radius.9 A I would say that it's unlikely, and I'll tell

10 you quickly why I'm doing that. I kind of have to11 patch the numbers together. But we currently have12 10 percent residential, as you suggest, and that gives13 us 1400 units.14 If we went to 40 percent residential,15 I'm just going to take that and multiply those units16 by four. Presume it's the same density. Okay? Are17 you with me so far on that? So that gets me up to18 about 5600 units, roughly -- maybe more.19 Then I look to see -- and that's within20 a mile. And then I look to see that we're21 anticipating there would be 9700 units within five22 miles, which is, of course, an area 25 times as large23 as a one-mile -- you know, 1 squared versus 5 squared.24 So we would have to capture a tremendous25 amount of this five -- you know, we would have to be

Page 724

1 capturing, I'm going to say, roughly 60 percent of the2 growth that's slated to occur within, I'm going to3 say, 25 square miles and put 60 percent of that within4 one mile.5 So I think it's very unlikely that that6 would happen. And I can make it more precise, but7 that's my off-the-cuff measurement.8 Q Let me get back to the simple formula. The9 2006 8.4 percent is represented by 1,183 existing

10 units.11 A I see that.12 Q In 2008, the 10 percent is 1,447 existing13 units.14 A Okay.15 Q That's an increase of about approximately 25016 units.17 A Okay.18 Q In two-years' time.19 A Right. Okay.20 Q Now, the expected growth in the five-mile21 radius till 2017, I believe the number is 10,000 new22 units. Granted, I admit this is the five-mile radius,23 but it's 10,000 new units.24 A It's not quite that, but let's say it's25 10,000. Sure.

Page 725

1 Q Okay. Within the one-mile radius there's2 going to be increased growth. The percentage of land3 use for residential use will increase.4 A I agree with that.5 Q At that point it would impact your6 determination of compatibility.7 A At what point?8 Q At any point. As this percentage continues9 to increase, 8.4 to 10 percent didn't cause you any

10 concern.11 My question is, as this 10 percent12 continues to increase, at what point in your expert13 opinion does land use compatibility become a concern?14 A Well -- and as I think I testified before --15 and that is, I don't have a threshold percentage here16 and it depends an awful lot on proximity and access17 routes and locations of this growth and is it upwind,18 is it downwind, is it on an access route, is it not,19 is it separated from U.S. 290 or not.20 There's so many other factors in that I21 don't think we can pin it down to a percentage, not to22 mention that it's speculative, you know, to begin23 with.24 Q Your ultimate conclusion is that the land use25 is compatible. When did you first see the CAPCOG

Page 726

1 letter indicating to the contrary?2 A I don't recall.3 Q I don't want to duplicate grounds that we've4 already gone through, but I do want to --5 JUDGE SCUDDAY: I appreciate that.6 Q (BY MR. FRIEDMAN) -- get to one point that7 hasn't been addressed with the CAPCOG. You testified8 earlier that you participated in the Spring/Cypress9 landfill?

10 A Yes, sir.11 Q You submitted a land use report?12 A Actually, I was a rebuttal witness on that.13 I don't recall that I actually did do a land use14 report.15 Q Was your conclusion that the land --16 surrounding land use was compatible with the facility?17 A That the facility was compatible with the18 surrounding land use, yes.19 MR. FRIEDMAN: Your Honor, may I20 approach the witness?21 JUDGE SCUDDAY: Yes.22 (Exhibit NNC No. 1 marked)23 Q Mr. Worrall, I'll put in front of you what I24 would call NNC, for Northeast Neighbors Coalition --25 NNC-1. Do you recognize that document?



43 (Pages 727 to 730)

Page 727

1 MR. RILEY: Actually, you should have2 the Reporter mark the documents, but it's really, I3 suppose, up to you, Your Honor.4 JUDGE SCUDDAY: Yeah. The Reporter5 needs to mark whatever he's got.6 MR. FRIEDMAN: I'm short on copies.7 JUDGE SCUDDAY: Well, you need to give8 one to the Reporter.9 MR. FRIEDMAN: Yeah.

10 MR. RILEY: I guess we could have him11 mark it and then give it back.12 Q (BY MR. FRIEDMAN) Mr. Worrall, do you13 recognize the document in front of you? Well, let me14 help. It's an order from the Texas Natural Resource15 Conservation Commission.16 MR. RILEY: Well, it says that on its17 face, but is counsel testifying now as to what it is?18 MR. FRIEDMAN: I'm not testifying to19 what it is, but I'm suggesting that it's --20 MR. RILEY: You asked him if he21 recognized it. Would you at least let him answer the22 question?23 JUDGE SCUDDAY: He may answer if he24 recognizes it.25 Q (BY MR. FRIEDMAN) Do you recognize the

Page 728

1 document?2 A I recognize what it -- yeah, I recognize it.3 Q You recognize it to be an order from the4 TNRCC?5 A I do.6 Q It's an order denying the application of the7 BMFS, which is also the Spring/Cypress landfill?8 A Right.9 Q And this is the proceeding that you

10 participated in as a rebuttal witness?11 A That's correct.12 Q If you will turn to Page 16, No. 5 -- well,13 I'm sorry. Let's go back a page to Page 15. There's14 a section title called "Conclusions of Law."15 A Okay.16 Q And then the next page, No. 5, it says,17 "Pursuant to Section 363.066(a) of the Code and18 Commission rules found at TA" -- I'm sorry -- "the19 Code and Commission Rules found at TAC 330.566(d), a20 permit application must conform to the goals and21 objectives of the Regional Solid Waste Management22 Plans unless a variance is granted by the Commission."23 A Okay.24 Q Is that your understanding of the current25 law, that a permit application must conform to the

Page 729

1 Regional Solid Waste Management Plan?2 A Honestly, you know, my current understanding3 is what it says here, you know, on Page 16, I guess.4 I don't know how the law might have changed. This was5 done 10 years ago, I guess.6 Q Okay. If you will turn to -- I've also7 placed the Texas Health and Safety Code book -- it's8 not that book. It's the one in front of you there.9 A Okay.

10 Q Open to the page with Section 366 -- 363.066.11 Do you see that there?12 A Yes, I do.13 Q Can you read that section, please?14 A And that would be 363.066(a)?15 Q That's right.16 A 3.6 -- excuse me. Strike that. It's17 363.066 -- is entitled "Conformity with regional or18 local solid waste management plan." Subset (a) of19 that is, "On adoption of a regional or local solid20 waste management plan by Commission rule, public and21 private solid waste management activities and state22 regulatory activities must conform to that plan."23 Q Okay. And in the Cypress landfill case,24 again, you submitted the opinion that it complied with25 this regional plan, or that it complied -- or was it

Page 730

1 just that it complied with the rules of the TAC?2 A It was -- first of all, I want to clarify. I3 believe my recollection is I was a rebuttal witness on4 that.5 JUDGE SCUDDAY: Are you asking him6 about -- I'm confused. Did he in the Spring one or in7 the --8 Q (BY MR. FRIEDMAN) In the Spring/Cypress9 proceeding, remind us what opinion you gave.

10 A The opinion I gave was that it was -- the11 proposal was compatible from a land use point of view12 vis-a-vis 360 -- you know, this code --13 (Laughter)14 MR. RILEY: The Administrative --15 A -- not this one. And it has changed since16 then, as I know we've all talked about. So there are17 some minor differences, but I'm mostly paying18 attention to TAC -- not -- TCA, is that what you call19 it?20 Q TAC. Okay. Now, if you'll flip to the21 exhibit that I've put in front of you to Page 12 --22 A Okay.23 Q -- and I just bring your attention so that24 you can read it. But despite your conclusion that the25 land use was compatible with the facility, at Section



44 (Pages 731 to 734)

Page 731

1 (d), the Commission found that the proposed2 Spring/Cypress landfill fails to conform to the3 objective in the HGAC regional plan requiring4 consideration of surrounding land uses. Is that5 correct?6 A That's what it says, yes.7 Q You testified earlier that the CAPCOG, which8 is the region -- the Council of Governments for this9 facility, that that letter did not play a role in your

10 analysis to whether or not the surrounding land use11 was compatible.12 A That's right.13 Q That letter from CAPCOG for this facility was14 not included as an exhibit to this application for15 249D.16 A I don't know if that's true or not.17 Q You didn't submit it as an exhibit.18 A I did not. That's a fact.19 Q And you are aware that that letter -- if you20 will turn to Exhibit JW-5 of the City -- or City of21 Austin-2.22 A I've got that.23 Q Page 5 of 8 on the right-hand.24 MR. RILEY: Excuse me. I was25 distracted. Where are we?

Page 732

1 A We're on -- I believe we're on COA-2. That's2 what I'm looking at.3 Q (BY MR. FRIEDMAN) That's right.4 A And then we're looking at Page --5 Q 5 of 8.6 A Mine just says "5" at the bottom. Is that7 different? I bet it is. Let me figure this out.8 Q At top of the page does it say, "As provided9 on Page 37"?

10 A Okay. I'm there.11 Q There's a No. 1 and then there's a bullet12 point after that.13 A Yes.14 Q The second sentence, "The CAPCOG determined15 in terms of siting facilities to avoid nuisances to16 neighbors and committees, this site is a poor choice.17 The existing and future land uses surrounding the site18 are incompatible with ongoing waste disposal19 activities."20 A Okay.21 Q Would that have been influential at all in22 your analysis?23 A Not particularly, because the following24 sentence says, "Applicant's conformance checklist25 refers to a land use analysis, but this provides

Page 733

1 CAPCOG and TCEQ only with a snapshot view of the land2 use conditions existing as of today and not an3 analysis of growth patterns as required by both the4 conformance checklist and the TCEQ rules."5 That is not true. So we have, in fact,6 provided an analysis of growth patterns. My concern7 about this is, it feels as though parts of this are8 true and parts of it are not, and that to me hurts its9 credibility vis-a-vis me.

10 Q And earlier you testified that CAPCOG hadn't11 thoroughly analyzed it as well as you had, and that's12 why it didn't play a role.13 A That's just my humble opinion, sir.14 Q Now, you then testified in the BFI case --15 you testified earlier today that in the BFI case16 CAPCOG came with a positive review.17 A Conditional conformance.18 MR. RILEY: Objection. I don't believe19 that was the witness's testimony at all.20 JUDGE SCUDDAY: He just -- he clarified21 what he said, conditional conformance.22 Q (BY MR. FRIEDMAN) In that letter you did23 include or the applicant included in its application?24 A Yes. Again, I did not have a role in either25 including or excluding those letters at all.

Page 734

1 MR. FRIEDMAN: I'll pass the witness.2 A Don't forget your rule book here.3 JUDGE SCUDDAY: Ms. Swanholm?4 CROSS-EXAMINATION5 BY MS. SWANHOLM:6 Q You know, I really don't know what I can ask7 you that's new besides what you had for lunch today.8 A It was a ham and cheese on wheat.9 (Laughter)

10 Q (BY MS. SWANHOLM) Sounds good.11 A It wasn't that great.12 (Laughter)13 Q (BY MS. SWANHOLM) Well, my apologies, then.14 But, of course, I'm going to try.15 A Okay.16 Q Okay. So back to CAPCOG again. You have17 reviewed the letter marked as JW-5. Yes?18 A I'm looking at one that's COA-2, but I19 presume it's the same thing.20 Q Yes. And you also mentioned that the CAPCOG21 determination was important to you in BFI or maybe in22 this case but that you put importance upon CAPCOG's23 determinations in the past. Correct?24 A I'm having a hard time hearing you.25 MR. RILEY: Your Honor, I object because



45 (Pages 735 to 738)

Page 735

1 it's -- I'm sorry.2 A I just couldn't hear the question.3 MR. RILEY: My objection is, I don't4 believe that's the witness's testimony from earlier5 today or at any point.6 JUDGE SCUDDAY: I think the question of7 putting importance is probably --8 MS. SWANHOLM: Okay. I'll ask it in a9 different way.

10 Q (BY MS. SWANHOLM) Have you placed importance11 upon CAPCOG's determination in the past?12 A I don't think CAPCOG is one of the more13 effective Regional Councils of Government. We've14 talked about HGAC a moment ago. We talked about --15 there's one up in the Dallas area. It's called North16 Central Texas COG.17 And in answer to your question, no, I18 don't place a whole lot of importance on it, I guess.19 Q Okay. After reviewing the letter marked JW-520 as you're referring to it, is there anything that you21 would like to change in your assessment of land use22 compatibility for the Waste Management expansion?23 A There's things I would rather change in their24 letter than in my analysis.25 Q Okay. All right. Well, that kind of goes to

Page 736

1 my next question. You also mentioned that CAPCOG's2 findings are incorrect. How are they incorrect, in3 your opinion?4 A Well, on the CAPCOG -- I'll give you some5 examples. I'm not sure I can be exhaustive. But I'm6 sure the Judge would appreciate it if I wasn't7 exhaustive.8 On Page 1 of the CAPCOG letter on what's9 labeled "Page 1" -- the second bullet point -- the

10 indented paragraph says, "Adjacent landowners will11 suffer visual, olfactory and other" --12 JUDGE SCUDDAY: Wait a minute. You're13 talking about the January 31, 2006 letter?14 A Yes, sir.15 JUDGE SCUDDAY: Okay. You're on what16 page of it?17 A It's Page 1 of that.18 JUDGE SCUDDAY: All right.19 A The last paragraph, and it's the most20 indented.21 JUDGE SCUDDAY: Okay.22 A It says, "Adjacent landowners will suffer23 visual, olfactory and other impairments to the use and24 enjoyment of their private property rights from the25 expansion of the landfill."

Page 737

1 I just don't understand why -- where do2 private property rights come from? I don't quite3 understand that. But the adjacent landowners, that's4 just -- you know, it's not apparent to me that -- I5 mean, the adjacent landowners that we've talked about6 are in -- three cases are landfills. And I have a7 hard time understanding how they are going to suffer8 visual, olfactory or other impairments to the use and9 enjoyment based on that. That's just one example.

10 Q (BY MS. SWANHOLM) Okay. Are you aware that11 one definition of "adjacent" includes things12 surrounding? It's not just something that is directly13 next to something else.14 MR. RILEY: Objection, that's redefining15 the word "adjacent," to my knowledge.16 JUDGE SCUDDAY: I agree. Do you want to17 show me the definition that says that, Ms. Swanholm?18 MS. SWANHOLM: I do not have a19 dictionary in front of me. I apologize.20 JUDGE SCUDDAY: Then I'm not going to21 accept that definition without seeing it.22 MS. SWANHOLM: All right. I'll reserve23 that for my final argument.24 A Could I give you one other example, or may I?25 Q (BY MS. SWANHOLM) Sure. Go on.

Page 738

1 A Okay. It's on the bottom of Page 2 of the2 same document. It says, "The facilities within the3 desired development zone of the city," which we've4 talked about, "and is adjacent to numerous homes,5 schools, historic sites and other sensitive6 receptors," there's nothing particularly correct about7 that, except the desired development zone. So that's8 the examples I'm talking about.9 Q Okay. All right. Well, thank you for

10 answering my question.11 A You bet.12 Q Now, earlier you mentioned there was some13 question about the distances between locations; i.e.,14 of residential areas and how close they actually are15 to the facility and whether the expansion will be16 closer to them than they are right now.17 I believe if I refer to Page 13, Line 2718 through 30 again and in your discussions with I19 believe the City of Austin's attorney --20 MR. RILEY: I'm sorry.21 JUDGE SCUDDAY: Page 13, Line 27.22 Q (BY MS. SWANHOLM) Line 27 where you state,23 "It's important to note that the proposed expansion of24 the ACRD facility will not cause the landfill to be25 any closer to the most proximate existing residence or



46 (Pages 739 to 742)

Page 739

1 business establishment or to any existing school,2 daycare center or historic site within one mile of the3 facility."4 And I believe you testified that that's5 not exactly true now.6 MR. RILEY: Objection to the7 characterization. That's not what the witness8 testified to.9 JUDGE SCUDDAY: No, he's saying that's

10 still true as far as the proximate existing residence.11 Q (BY MS. SWANHOLM) So there might be some12 instances in your prefile or in your report that in13 retrospect you might revise?14 MR. RILEY: Judge, I misunderstood your15 exchange, because I thought you said --16 JUDGE SCUDDAY: Ms. Swanholm, he didn't17 say -- he didn't say that that was wrong. He said18 that that was correct, that it has -- it's still19 correct. It's not any closer to the most proximate20 existing residence.21 MS. SWANHOLM: Okay. My apologies.22 Q (BY MS. SWANHOLM) I guess what I'm getting23 at is that it might not be -- it might -- the24 expansion might be closer to the actual site where the25 waste is and will be.

Page 740

1 There was some question about whether2 the boundary line of Waste Management's property was3 where you measured from or whether you measured from4 where the actual waste is on Waste Management's5 property.6 A Right. And I was trying to clarify that I7 just measured it from the permit boundary, and that's8 what these distances are measured from.9 I didn't measure it from the limit of

10 fill. So I can't speak to that.11 Q Okay. Moving on to land use compatibility,12 generally. How many land use compatibility13 determinations in the State of Texas have you14 completed?15 A I would say about 25 or 30.16 Q Okay. And in any of those situations, did17 you ever conclude that a site or facility was18 incompatible with the surrounding land use?19 A In three of those cases, yes.20 Q Okay. Could you describe those situations21 briefly?22 A I can in one. In two of them I don't think I23 can without jeopardizing what's an ongoing situation.24 I can describe one of them to you, though.25 Q Well, could you -- okay. Well, describe the

Page 741

1 first one and maybe you can just give us the names of2 the other two situations.3 A That's specifically what I won't do. I can't4 do that. They're pending.5 MR. RILEY: Judge, if the witness has --6 A I'm a consulting expert.7 MR. RILEY: I understand. If he has8 obligations of confidentiality, of course there are9 ways to protect that confidentiality through a

10 protective order, if that's necessary. I certainly11 hope it's not.12 JUDGE SCUDDAY: Well, let's just ask him13 about the one he can talk about.14 Q (BY MS. SWANHOLM) If you could describe the15 first instance, please.16 A It was a project that's called "DFW landfill"17 and it's a Waste Management landfill, as I recall.18 Maybe it's called the "DFW RCDF" or something like19 that. But, anyway, it's up in Lewisville, Texas in20 the Dallas/Fort Worth area.21 I was asked to prepare a compatibility22 study for the lateral and vertical expansion of that23 facility. I examined the proposal and I visited the24 neighborhoods and started my process of doing an25 analysis.

Page 742

1 I concluded that in my opinion it would2 not be compatible with nearby residential areas. And3 so I told the client that I couldn't work on it4 because of that. So they said, "Okay. Thanks.5 Good-bye."6 And about a year later, an attorney7 contacted me on the deal and said, "What would it take8 for you to testify on this?" I said, "Well, you know,9 it's just" -- my main concern was that the landfill

10 kind of would loom over a neighborhood, for a lack of11 a better description.12 So I just suggested to him that, well,13 in order for me to make a finding of compatibility14 we'd have to redesign the landfill -- you know, kind15 of push it back and bring it down. So we did that.16 That's what happened, and I did17 ultimately testify on that and do a land use18 compatibility study to its completion and probably 1819 months after I had said I wouldn't do it. But they20 came back and said, "Well, let's see what we can do to21 make it compatible."22 So I was able to get involved in the23 redesign of the landfill and make it compatible, and,24 therefore, that's the story on that.25 Q Okay. Could you go through a little bit more



47 (Pages 743 to 746)

Page 743

1 specifically what was changed and what led to you2 changing your mind on that? I know you kind of went3 through it briefly.4 A Well, I don't remember the distances involved5 or anything like that. But I just felt that the6 landfill was too high in proximity to neighborhoods to7 the south of it. So in talking -- in going back and8 visiting with -- I apologize. I think it was Waste9 Management. I may have my client wrong on that. I

10 think that's right.11 In going back and visiting with them12 about it, we agreed that instead of having -- you13 know, most landfills are designed at a 4:1 slope -- a14 maximum of a 4:1 slope and they go up to a certain15 height.16 Q Yeah.17 A So what I got the client and the engineers to18 agree to do was step back, you know, reduce the slopes19 on it so it wouldn't loom up so much. And partly you20 would have to see it in plan, but instead of being21 straight sides like we're talking about here, it was22 kind of amphitheater like almost.23 So it just felt like it was, you know,24 kind of doing this (indicating) around the25 neighborhood, and I said, "Let's just lean it back as

Page 744

1 much as anything. So that's the gist of it.2 Q Okay. That's actually interesting, because I3 grew up right near Lewisville. So --4 A I know you said you were from Dallas.5 Q Yeah.6 MR. RILEY: And I certainly don't mind a7 little colloquy, but is the editorial really8 necessary?9 MS. SWANHOLM: Well, I was about to ask

10 him where exactly the landfill is located.11 JUDGE SCUDDAY: Ms. Swanholm, what's the12 relevance?13 MS. SWANHOLM: Well, there's been a lot14 of questions today about what sort of threshold would15 lead to a land use incompatibility finding, and so I'm16 trying to explore what's too much, I guess.17 MR. RILEY: In Lewisville? It seems as18 if that's what we're exploring.19 JUDGE SCUDDAY: You're just saying in20 general?21 MS. SWANHOLM: Yes. I can get back to22 this case, if you'd like.23 JUDGE SCUDDAY: Well, that would be24 good.25 MS. SWANHOLM: Okay. All right.

Page 745

1 Q I guess this is kind of a general question,2 but it's more related -- back to the threshold issue3 of "what's too much." Have you heard of Love Canal?4 Have you heard of that incident?5 A I know the name, yeah.6 Q It's back to the late '70s.7 A Yes.8 Q Okay. Are you familiar with it? Have you9 studied it at all in your land use research or

10 learnings?11 A No.12 Q Okay.13 MS. SWANHOLM: I guess I don't have any14 further questions.15 A Thank you.16 JUDGE SCUDDAY: Thank you.17 Ms. Richardson?18 MS. RICHARDSON: Your Honor, I don't19 have any questions. I was just concerned about what20 happened to NNC-1, if it was admitted.21 JUDGE SCUDDAY: It never got offered.22 MS. RICHARDSON: Are you withdrawing it?23 MR. FRIEDMAN: I would like to offer it24 at this time. I was going to do it right before she25 started.

Page 746

1 MS. RICHARDSON: If I have the docket2 number or some identifying number, I don't need a3 copy. I just...4 JUDGE SCUDDAY: Is there any objection5 to Mr. Friedman going ahead and getting his document6 entered?7 MR. RILEY: No, no objection whatsoever.8 JUDGE SCUDDAY: NNC-1 will be admitted.9 (Exhibit NNC No. 1 admitted)

10 JUDGE SCUDDAY: And that's why I ask you11 guys, but I didn't ask that time. Getting12 side-tracked. All right. Mr. Riley?13 MR. RILEY: Oh, I'm sorry.14 JUDGE SCUDDAY: It's back to you.15 MR. RILEY: All right.16 REDIRECT EXAMINATION17 BY MR. RILEY:18 Q Well, let's pick up where somebody left off.19 Let's talk about the Spring/Cypress order, NNC No. 1.20 It's probably there in front of you, Mr. Worrall.21 A Got it.22 Q Perhaps I didn't read closely enough and23 maybe you've had an opportunity. I didn't see where24 there was any discussion of the Commission in that25 instance deferring to the COG's determination. Did



48 (Pages 747 to 750)

Page 747

1 you find that?2 A I didn't see it in my quick glance at it.3 Q And, instead, it seemed like the Commission4 made its decision without the conformance with the5 regional plan. Is that your understanding? Is that6 what happened?7 A You know, Mr. Riley, other than what it says8 here, I don't have a clear recall of it.9 Q There were portions read and I think they

10 speak -- the order speaks for itself. But as I found11 it, it referred more to -- in fact, it referred12 exclusively to the Commission's determination of13 conformance and not the COG's determination of14 conformance.15 A That's what I recall.16 Q Let's go to the book. Section 363.066(a).17 Much has been made about this section.18 A The so-called "other book"?19 Q The other book.20 A I'm at 363.066. Is that what you're asking?21 Q Yes, sir, and particularly with respect to22 the letter (a), the subpart subsection.23 A Yes, sir.24 Q Okay. What's the third word in that25 paragraph?

Page 748

1 A "Adoption."2 Q So it suggests that a regional plan must be3 adopted. Is that correct?4 A That's how I read that, yes.5 Q And then -- I'm sorry. If I'm reading6 incorrectly, please tell me. "On the adoption of a7 regional or local solid waste management plan by8 Commission rule, public and private solid waste9 management activities and state regulatory activities

10 must conform to that plan." Is that correct?11 A That's right.12 Q There is a notion that the plan must be13 adopted. Is that correct?14 A That's correct.15 Q And at least as I'm reading it, must be16 adopted by the Commission, again, referring to the17 Texas Commission on Environmental Quality?18 A I gather that's what that means, yeah.19 Q With respect to -- it's got several different20 numbers -- City of Austin No. 2, which is the -- it21 starts with an April 10, 2008 cover letter.22 A Yes.23 Q There is a reference to a particular regional24 solid waste management plan that was approved by25 the -- oh, I'm sorry. I apologize. I'm reading from

Page 749

1 Page 1 of neither cover letter but actually numbered2 Page 1.3 A Okay.4 JUDGE SCUDDAY: I'm sorry. You're5 reading from where?6 MR. RILEY: I'm sorry. There are two7 cover letters, and then the numbering begins in the8 exhibit. So, Page 1.9 JUDGE SCUDDAY: Page 1 of the -- which

10 says, "CAPCOG conformance determination" at the --11 MR. RILEY: Yes, sir.12 JUDGE SCUDDAY: All right.13 Q (BY MR. RILEY) And right at the top in14 bolded paragraph that begins "As provided." Do you15 see that paragraph?16 A Yes.17 Q Again, tell me if I'm reading incorrectly.18 It says, "As provided on Page 34 of the Regional Solid19 Waste Management Plan that was approved by the CAPCOG20 Executive Committee on July 10, 2002," and then21 there's a comma and then it continues. Is that right?22 A Right.23 Q So this determination or review was in direct24 relationship to a particular Regional Solid Waste25 Management Plan dated presumably July 10, 2002?

Page 750

1 A That's how I would read it, yes.2 Q Do you know if that plan was ever approved by3 the TCEQ by rule as provided in the statute?4 A Adopted --5 Q Yes, sir.6 A -- by the Commission?7 Q Right.8 A I do not know if it was or not, Mr. Riley.9 Q Have you looked at a CAPCOG Regional Solid

10 Waste Management Plan in the last several days?11 A Yes, I have.12 Q Okay. And could we provide the witness with,13 I believe, it's APP-218?14 A Okay. I've got APP-218.15 Q There's a particular provision in there16 regarding the need for solid waste disposal capacity17 in the CAPCOG region.18 Are you familiar enough with the plan to19 find that page?20 A Would you repeat your question?21 Q Certainly. There's a portion of the plan22 that speaks to particularly some landfills potentially23 going out of existence --24 A Oh, right.25 Q -- and the need for landfill capacity in the



49 (Pages 751 to 754)

Page 751

1 CAPCOG region.2 A Right.3 Q When you find it, could you please tell us4 all what you're looking -- what page?5 A I think what you're referring to is on Page6 15 of the plan, which is APP-218 and is Page 28.7 Q And with respect to landfill capacity in the8 CAPCOG region, particularly Type I facilities, does9 the CAPCOG plan speak to remaining life of existing

10 facilities?11 A If I might, I would just read what I had12 noted in this plan, which is the second paragraph on13 this page that I'm referencing.14 Q Yes, please.15 A "The total remaining years of landfill16 capacity for Type I facilities may not be sufficient17 when considering the rapid population growth in the18 region. Two of the four active Type I landfills had19 less than 12 years remaining in 2000. In the event20 that either of these closes, the other landfills'21 capacities will diminish rapidly.22 "Planning should begin for future23 landfills because the total amount disposed of will24 only increase while the capacity decreases." The25 first sentence of the next paragraph says -- if I

Page 752

1 may --2 Q Yes, sir.3 A -- "No new facilities in the CAPCOG region4 are being planned at this time."5 Q Thank you. And I'm intrigued by a number of6 the nuggets in the paragraph you read, including the7 reference to rapid population growth in the region.8 Is that similar at least in terms of --9 in gross terms to population growth that you've

10 analyzed in the five-mile radius at least of this11 particular facility, is it generally true that there12 is rapid population growth occurring in the CAPCOG13 region?14 A Yes, that's true.15 Q And how are you familiar with that,16 Mr. Worrall?17 A Oh, I guess just being -- first of all, being18 a professional planner. You know, living in this19 metropolitan area, I'm certainly familiar with it.20 Also from my work certainly on this21 project as well as the BFI project we talked about22 earlier. I guess those would be the main reasons.23 Q The CAPCOG regional plan -- I hate to say24 something so obvious, but it obviously is concerned25 with planning for waste disposal services in the

Page 753

1 entire region. Is that correct as far as you2 understand it?3 A Presumably.4 Q I mean, I think the words somewhat speak for5 themselves when you speak to a Regional Solid Waste6 Management Plan, but I'm asking you if you know that7 to be the case?8 A Well, there's some things that are not in9 this plan that are in other plans that I've seen --

10 other COG plans. You know, I guess you've got to take11 it at its title's face value.12 Q Are you a Star Trek fan?13 A Don't have a TV. Still don't.14 Q This is actually in --15 A Is it a movie?16 Q -- the Wrath of Khan, but it's probably not17 worth discussing. But the concept of the needs of the18 many outweigh the needs of the few. Could you embrace19 that concept for a moment?20 A Yes.21 Q So is it fair to say that there will be22 regional solid waste disposal needs commensurate with23 population growth; in other words, increased regional24 solid waste disposal needs commensurate with25 population growth?

Page 754

1 A That's right. I mean, I was just looking at2 population figures for this CAPCOG and it's projected3 to be -- or it's currently, roughly, 1.4 million4 people in this CAPCOG region right now. You know,5 it's projected to go up to -- I can't remember --6 quite a bit by the Year 2025.7 Q Would you agree with the portion of the8 Regional Solid Waste Management Plan that CAPCOG has9 currently in place that states that there's a need for

10 Type I municipal solid waste facilities -- I'm11 sorry -- in the CAPCOG region?12 A Well, I do find it interesting, if not13 compelling, of the first sentence I read that the14 capacity for Type I facilities may not be sufficient15 when considering rapid growth population.16 Q The lack of capacity of solid waste disposal17 facilities actually inhibit population growth, in your18 opinion?19 A Well, I would think it would inhibit the --20 you know, it inhibits the infrastructure of our21 region, I mean, in every bit as much as insufficient22 water, insufficient wastewater, insufficient23 electricity, insufficient roads, insufficient waste24 capacity. Any of them would have a negative impact, I25 think, on the economic growth and development.



50 (Pages 755 to 758)

Page 755

1 Q Let me shift gears on you just a little bit.2 There's an agreed order that you've referenced several3 times in your testimony on cross-examination. Do you4 have a copy of that agreed order before you?5 A Not to my knowledge. I'm sorry. I don't6 know where that would be.7 Q It's City of Austin No. 1.8 A Okay.9 Q Do you have City of Austin No. 1 in front of

10 you, Mr. Worrall?11 A I do, COA-1.12 Q I think you said you looked at this in13 contemplation of your testimony at a minimum and14 perhaps more broadly in consideration of you preparing15 your report. Is that accurate?16 A Mostly in preparation for our hearing.17 Q All right. There have been several18 references to "nuisances," and I think we've accepted19 that in a hypothetical context that there are various20 aspects of landfill operations that one might classify21 as a nuisance -- is that -- and, again, a general22 common use of the term "nuisance."23 A Yes.24 Q And that those nuisances as opposed to a25 regulatory finding of nuisance are things that are

Page 756

1 considerations in your land use analysis?2 A Yes.3 Q Among the things I think you have been4 questioned about today was a period of complaints and5 perhaps a long period or a short period that was not6 established but at least you were aware that there had7 been complaints regarding one or both of the landfills8 we've been discussing here today; namely, the BFI9 landfill and the Waste Management landfill. Correct?

10 A Yes.11 Q So as a result of those complaints or at12 least what you've heard of those complaints, are you13 aware of any enforcement action -- and by that I mean14 a notice of violation or any type of enforcement15 action taken by TCEQ other than the 2004 agreed order16 that is City of Austin Exhibit No. 1?17 A That's the only one I'm aware of, is that18 which is contained in this document, COA-1.19 Q And there are other witnesses in the case who20 have already introduced compliance history21 calculations for the facility that are conducted or22 are determined by TCEQ.23 Are you familiar with the -- generally24 speaking, the rating system that TCEQ is mandated by25 statute to perform?

Page 757

1 A For...2 Q For regulated entities in the state of Texas.3 A I'm afraid you have to be more specific. I'm4 not sure I --5 Q That's fine. The TCEQ -- I guess the6 question is, are you familiar with how TCEQ evaluates7 compliance history for regulated facilities in the8 state of Texas?9 A Only just very generally.

10 Q Are you aware of any determination by TCEQ11 regarding this particular facility, its performance12 rating?13 A I'm aware that it's -- my recollection is14 that it's got -- I think it's called an average15 compliance history.16 Q The agreed order that we have now in front of17 us, City of Austin Exhibit No. 1 -- I think you've18 looked through this hopefully enough to know -- how19 many of the alleged violations referenced in this20 agreed order relate to any item that would be21 considered under the broad heading of nuisance?22 A By my understanding the definition of one of23 these items do. It's No. 6 on Page 5 of this24 document.25 Q Let me find that. Okay. On Page 4, there's

Page 758

1 a heading under Roman Numeral II called "Allegations."2 Correct?3 A Right.4 Q So then you read down through there and find5 Page 5, No. 6?6 A That's right. Allegation No. 6 is what I7 should have termed it.8 Q There's some statutory provisions, which I9 will not ask you about, but it does continue in that

10 paragraph to describe an incident of violation at11 least as alleged by TCEQ on April 4, 2002?12 A Correct.13 Q And, generally speaking, what was the14 allegation referring to?15 A The way I read it, it's an odor complaint or16 odor concern they say discharging one or more air17 contaminants such that it would interfere with normal18 use and enjoyment of property, which is something I19 kind of look for from a compliance point of view or20 compatibility point of view.21 Q Have you looked at all the other paragraphs22 under the -- excuse me -- general heading of23 "Allegations" in Roman Numeral II?24 A Yes, I have.25 Q And is it accurate to say that Paragraph



51 (Pages 759 to 762)

Page 759

1 No. 6 is the only incident of alleged violation2 regarding an odor nuisance?3 A That's my understanding, yes.4 Q Did you see somewhere in the documentation5 supporting this agreed order whether there was a6 calculated fine with respect to that particular item?7 A Yes, I did. It was a penalty work sheet or8 something -- penalty calculation sheet -- something of9 that effect.

10 Q Okay. Do you recall the penalty that was11 assessed in relation to the item you've identified as12 an odor nuisance violation?13 A My recollection is twofold, and that is that14 the entire penalties assessed on this was $244,000,15 roughly, and that those assigned to or assessed16 against the allegation No. 6, the odor concern, was17 $6,000 worth of that penalty was attributed to that.18 Q So is it fair -- since we've been doing a19 number of calculations today in terms of percentages,20 what percentage of the penalty, if you know, is $6,00021 of $244,000?22 A Well, on the top of my head, it's less than23 3 percent.24 Q Do you know of any other incident where Waste25 Management, Austin Community Recycling and Disposal

Page 760

1 Facility has been cited for odor nuisance?2 A I'm not aware of any others, no.3 Q So at least since -- for some seven years4 almost, there has not been a citation for odor5 nuisance from the subject facility. Is that correct?6 A A little less than seven years.7 Q Did you look at your watch?8 A Yeah.9 (Laughter)

10 Q (BY MR. RILEY) There were questions, I11 believe it was from Travis County earlier today, about12 the importance of compliance as it pertains to your13 work in evaluating land use.14 A Okay.15 Q And there are some -- I believe the context16 of the questions were largely in terms of violations17 related to what has been loosely termed as "nuisance18 violations."19 Do you recall that line of questions?20 A Yeah, generally. Yes.21 Q The implication was, perhaps, that you were22 not thorough in your review of compliance history and,23 therefore, your opinion in this case might be tainted24 by the fact that you don't know the entire compliance25 history as it pertains to those nuisance allegations.

Page 761

1 Do you remember that?2 A Yes.3 Q If this sole violation in the agreed order4 that's been discussed thoroughly in this contested5 case thus far, if there was a violation in April 2002,6 assuming even that it moves beyond the allegation7 stage and indeed was an odor nuisance violation and8 indeed that it was caused by the Waste Management9 facility, does that change in any way your conclusion

10 regarding your land usage analysis?11 A I believe it reinforces my opinion that it's12 a compatible land use.13 Q Without shoving words into your mouth, is it14 to say that a single violation of an odor -- of an15 odor type or an odor violation is not sufficient as16 you see it --17 MS. FARHADI: Your Honor, I'm going to18 object here as leading his witness.19 JUDGE SCUDDAY: Since he told him he was20 going to, I don't see any problem.21 MS. FARHADI: What was that?22 MR. RILEY: It was only a little.23 Q (BY MR. RILEY) Does our discussion regarding24 the allegation of odor nuisance violation in25 April 2002 -- and I'll ask you to assume that was a

Page 762

1 valid allegation, in fact, that there was a violation,2 does that change your opinion as to whether Waste3 Management has acted or -- excuse me -- has maintained4 the facility in compliance as you understand it in5 conducting a land use violation?6 A I believe that the facility is being operated7 in compliance based on the essential lack of evidence8 otherwise.9 Q We have heard discussions of task forces and

10 other types of enforcement activity, but you're not11 knowledgable as to those subjects. Is that correct?12 A Strike teams.13 Q I'm sorry?14 A No, I'm not.15 Q Even more vivid is the --16 A There was. I remember that.17 Q There was a word you used earlier which,18 frankly, I just don't understand, and it was in19 relationship to City of Austin No. 2 discussing the20 bullet points cited in the cover letters. And --21 A Oh, yeah.22 Q What was the word you used?23 A I misused it, I believe. I used solipsism,24 which -- what I meant to really say -- that's not too25 far off. But, anyway, what I meant to say was



52 (Pages 763 to 766)

Page 763

1 self-referential, I think, is a better word.2 Q Okay. Is it -- well, I'm not sure. Is it3 also a bit of bootstrapping to say that you're not in4 conformance with something --5 MS. FARHADI: Objection, leading again.6 JUDGE SCUDDAY: Sustained.7 Q (BY MR. RILEY) Could you explain what you8 mean?9 A Well, at the time, as I recall, I was asked

10 to look at the three bullet points on the very first11 page of COA-2 and read them.12 It just struck me that Bullet Point13 No. 2, which is to say that, you know, "We find you14 not in conformance because you're not in conformance,"15 it just struck me as self-referential. I'm not sure16 that's exactly still the right word, but it's kind17 of -- I don't know. That's all I had to say about18 that.19 Q Are you familiar with the phrase -- often20 misused phrase -- "begs the question"?21 A Begs the question sounds -- I could use that.22 Q I believe it's used in philosophy to say that23 it answers the question by answering the question with24 the same information.25 A Right.

Page 764

1 Q Is that your position on Bullet Point No. 2?2 A And it's maybe solipsism as well. But, yes,3 sir.4 Q Without being too indulgent here in our5 conversation, can you distinguish Bullet No. 3 from6 Bullet Point No. 1 in that cover letter?7 A I don't understand that differentiation, and8 I don't think it's explained in here.9 Q At least as far as you're concerned then in

10 terms of interpreting this cover letter and referring11 to the three bullet points cited, that at least two of12 them -- well, you've already explained how you view13 those. Is that correct?14 A Yeah.15 Q Is it fair to say, then, they fold into the16 first bullet point?17 A Well, two of them are essentially the same18 bullet point, it seems to me, and the second one begs19 the question.20 Q Earlier today we were discussing the number21 of residence, I believe, within a five-mile radius.22 Is that right?23 A Yes.24 Q Did you choose the five-mile radius as your25 area of study?

Page 765

1 A It's a TCEQ rule.2 Q And so complying with the TCEQ rule, you3 analyzed residential growth in that five-mile radius.4 Is that fair?5 A Growth trends within five miles.6 Q Thank you. There was a discussion about7 supply and demand, and my notes -- that's basically8 what I have is supply and demand. Could you explain9 that a little further?

10 A Well, we did two things in our growth trends11 analysis. One was to try to estimate how many new12 households would be formed within five miles to13 determine the growth trend, and we came up with the14 estimate as we did.15 I can find it. So that's the demand16 side. The supply side is to look at the inventory of17 lots on the ground or planned lots, in some case, to18 determine how much supply of homes could be supplied.19 So there are kind of two parts to the20 equation. They may or may not be in sync with each21 other.22 Q Well, there's probably no way to compel23 people to move into the lots that are already planned24 or under development.25 A Right.

Page 766

1 Q Am I correct on that?2 A Right.3 Q But at least in terms of inventory and doing4 a very simple analysis, can you estimate based on the5 prediction of approximately -- I believe it was6 somewhere in the nature of a thousand new residents --7 a thousand new households, I believe -- how much8 inventory is there. Do you understand my question?9 A I do, but I don't think you have the numbers

10 right.11 Q All right. Thank you. Maybe you could help12 me. Can you tell me where you're going so --13 A Yes, sir. APP-302, Page 21. This one I'll14 call the demand.15 Q Hang on. I'm a little lost. There we go.16 I'm there.17 A I guess you did have the numbers right. My18 apologies. So it's about a 1,000 households per year19 annually demand. Right? That's what you were20 suggesting?21 Q Yeah, that's what I'm suggesting. Actually,22 I would -- rather, you suggested but at least that's23 what I recall.24 A Okay. And then if we go to APP-302 -- same25 exhibit -- Page 18, we'll see that we have vacant and



53 (Pages 767 to 770)

Page 767

1 undeveloped single-family lots on Table 7 at the top2 indicating 18,000 homes, let's say -- 18,000 lots.3 Q So my question really is -- can I just --4 again, there's no way to compel the 1,082 folks who5 will move in to fit into the 17,963 vacant and6 undeveloped lots that are planned.7 A Right.8 Q But if I could, is it fair to say that I have9 an 18-year supply based on the developments that are

10 already --11 MS. FARHADI: Objection, leading.12 JUDGE SCUDDAY: That's not leading. He13 asked, "Is it fair to say."14 MS. FARHADI: Duly noted.15 JUDGE SCUDDAY: If it's not fair, he can16 say, "It's not fair."17 MR. RILEY: I left an option.18 A Actually, when we look at new household19 formation estimated at slightly over a thousand, you20 will note that that's single-family and multifamily21 demand. Okay?22 So if you look at single-family and23 multifamily supply on Page 00018 you'll see that the24 number is closer to, oh, 25,000, just to pick a25 number.

Page 768

1 So if you just did simple math, forced2 people into the existing inventory of things and3 nothing else happened and demand didn't change and4 supply didn't change, you would have at this rate5 roughly 25 years of inventory within five miles.6 Q I think we have covered with a number of7 different witnesses projected life of municipal solid8 waste landfills in general and then in particular.9 But, again, using the data we just

10 referred to, if an expansion of the Waste Management11 landfill would come and go, so to speak -- granted,12 filled, closed in 25 years -- I recognize the13 simplicity of our discussion, but it would suggest14 that the developments that are already there could15 accommodate population growth during that period?16 A They could. They could accommodate all the17 growth we're talking about for those 25 years at that18 absorption in the map as described on Page 20 of the19 same exhibit.20 That's where all those -- all that21 inventory occurs.22 MR. RILEY: Could I just have a minute,23 Judge?24 Q (BY MR. RILEY) There were a number of25 questions by the City of Austin regarding -- it was

Page 769

1 small number, but it was a number -- the industrial2 waste unit. Do you remember those questions?3 A Yes.4 Q I believe, if I recall correctly, just to5 frame my question, you testified that you were aware6 of an existing industrial waste unit. Is that7 correct?8 A That's correct.9 Q And to the best of your knowledge, is there

10 any proposal or any part of the current permit11 application that would alter the industrial waste unit12 in terms of adding waste to it or any other activity13 regarding the industrial waste unit?14 A It's my understanding it won't be affected.15 Q So is it fair to say that regardless of16 whether this expansion is granted or not, the17 industrial waste unit will exist at least within your18 field of land use compatibility?19 A Right.20 Q So to the extent that it is a factor in your21 analysis, does it change in any way by -- in other22 words, does it change the land use relationships that23 currently exist?24 A No, it does not.25 Q I like the word "cradled." Perhaps you

Page 770

1 feel that's a little --2 MS. COX: Objection.3 JUDGE SCUDDAY: Sustained.4 MR. RILEY: I withdraw the --5 JUDGE SCUDDAY: You were doing it to6 them. So they get to do it to you.7 (Laughter)8 A At lunch time I came up with "sandwiched."9 (Laughter)

10 Q (BY MR. RILEY) Is that because you were11 hungry, Mr. Worrall? Let's go to the map. TJFA-20212 is before you there on the easel. Do you recognize13 what's depicted in TJFA-202?14 A Yes, I do.15 Q Let me just?16 MR. RILEY: May I approach and take down17 the -- thank you, John.18 A I should have left it to the experts.19 Q (BY MR. RILEY) All right. Do you see the20 aerial photography that's been blown up and referred21 to as TJFA-202 in the lower right-hand corner?22 A Yes, sir.23 Q Do you generally recognize what's depicted in24 TJFA-202?25 A Yes, I do.



54 (Pages 771 to 774)

Page 771

1 Q What do you recognize it to be?2 A I recognize it to be an aerial photography of3 the vicinity of the matter at hand.4 Q And for the same of our discussion, let's5 just accept that it's a -- it was actually taken and6 reflects the conditions on December 4, 2007 as it7 indicates it does in the lower left-hand corner.8 A Okay.9 Q Have the conditions in terms of relative

10 position of the various items depicted and labeled,11 have those conditions changed since that date,12 December 4, 2007?13 A The only change I'm aware of would be, if you14 went north on Harris Branch Parkway to the very top of15 the photograph, you can see some disturbed land up16 there. Would you like me to point at it?17 Q Please, if you would. Yes.18 A (Witness complies)19 Q All right. And for the sake of the record,20 the witness has indicated what I would characterize as21 a tan portion of the exhibit to the upper right-hand22 corner.23 A Right, along a roadway labeled "Harris Branch24 Parkway."25 Q Do you know what that area is, Mr. Worrall?

Page 772

1 A It's part of the Harris Branch PUD, and it2 has -- you asked me if I had known any changes.3 Q Yes, sir.4 A That's one thing that -- I know homes are now5 built there.6 Q Are not built there?7 A These are built there.8 Q I'm sorry. I couldn't hear you.9 A They have been built in what is otherwise

10 shown as a disturbed area. Off the top of my head, I11 don't recognize anything else as being different.12 Q All right. So it looks as though the area13 that you've pointed to was in development at the time14 of this photograph and has since been developed, is15 your testimony. Is that --16 A Yes, or is still developing, actually, as I17 recall.18 Q While we're on the topic of Harris Branch, is19 there access to the Harris Branch subdivision through20 a road other than Giles Road?21 A Yes. The main entrance to the subdivision is22 the previously referenced Harris Branch Parkway that23 exits or enters, as the case may be, on U.S. 290 some,24 oh, I would estimate it to be a little less than a25 mile further east than Giles Road.

Page 773

1 Q Other than what you have already described,2 again, for the purposes of our discussion, does the3 exhibit represent approximately the current conditions4 in terms of land use relationships today?5 A Yes, it does, I believe.6 Q So you're no doubt aware, since you have been7 asked about it, that the BFI landfill has reached some8 form of an agreement with some parties agreeing to9 close its landfill on November 1, 2015. Is that

10 correct?11 A November 2015. I don't remember the date.12 Q All right. I'm sorry. Did I -- all right.13 November 2015 is the --14 A Uh-huh.15 Q -- my recollection. I think you were asked16 about a restrictive covenant earlier today to that17 effect.18 A Right.19 Q I think you indicated that you did not20 recall -- or you're not aware of the restrictive --21 A I wasn't aware of the mechanism of closing22 exactly.23 Q You were asked a number of questions about,24 if that were true and, in fact, the landfill known as25 the BFI landfill did close on that date or in

Page 774

1 November -- excuse me -- November 2015 -- would that2 affect your land use analysis, and I think your answer3 was, "Yes, it would." Is that right?4 A Well, it would be something I would have to5 consider, I think, you know, as a different land use6 at that point. But it doesn't feel like it would make7 a material difference, frankly.8 Q So when you say "affect" or "it would be9 important" doesn't necessarily change your conclusion.

10 Is that correct?11 A That's --12 MR. FRIEDMAN: Objection, Your Honor,13 leading.14 JUDGE SCUDDAY: Answer the question.15 Overruled.16 A Okay. My conclusion is -- at such time as17 the BFI landfill closes in 2015 and nothing else is18 different than what we're seeing, my conclusions would19 not be changed.20 Q (BY MR. RILEY) And that was the hypothetical21 that you were asked. Correct?22 A That's what I understood it to be, yes.23 Q The expansion area that we've been24 discussing -- well -- a good part of the day on25 TJFA-202, could you point to the area that you



55 (Pages 775 to 778)

Page 775

1 understand to be the expansion area in terms of its2 property boundary -- not the waste fill area us, just3 the property boundary?4 A It's not exactly a square or rectangle, but5 it's generally in this area right here (indicating).6 Q Okay. And just so I can describe it for the7 record, there are two red -- oh, whatever they are --8 boxes that you've indicated on the red box to the9 north a section to the eastern portion of that red box

10 where you understand the property boundary to be as it11 pertains to the application we're discussing?12 A You might say it's cradled between the red13 and yellow lines.14 Q Without expressing any more affection for the15 word "cradle," could you describe what you mean by16 "cradle"? Could you, perhaps, even point to the items17 you consider to be cradling the expansion area?18 JUDGE SCUDDAY: Mr. Riley, he's already19 said between the two parts of the landfill.20 MR. RILEY: I apologize. All right. I21 guess I'm looking for clarification as to which22 landfills.23 JUDGE SCUDDAY: Yeah, how about that?24 MR. RILEY: That's even better.25 Q (BY MR. RILEY) The height of the BFI

Page 776

1 landfill that you testified to earlier, to the best of2 your understanding, is what?3 A The maximum proposed height per the last4 permit hearing was proposed to go to a maximum height5 of 795 above MSL.6 Q All right. So it's at some permitted height7 presently. Is that correct?8 A I would estimate that the permitted height9 presently is probably 720, but that's just a pretty

10 good estimate, I would say. But that's just what it11 is.12 Q And if I recall your testimony earlier, you13 gave the height of the -- in terms of mean sea14 level -- feet above mean sea level --15 A Right.16 Q -- for the Waste Management landfill to be?17 A My understanding is 740 above mean sea level.18 Q If I'm understanding your testimony19 correctly, then, the BFI expansion that is proposed20 and under consideration by the TCEQ would increase the21 permitted height of its present landfill some 75 feet.22 Is that correct?23 A That's correct.24 Q And can you reconcile the CAPCOG25 determination that found BFI's proposed expansion in

Page 777

1 conformance with the Regional Solid Waste Management2 Plan as it pertains to land use and a CAPCOG3 determination of nonconformance for the Waste4 Management proposed expansion?5 A I believe it was primarily because of the6 assured closure date of BFI.7 Q And from a land use perspective, how would an8 assured closure date alter a land use analysis?9 A Well, it will give an assurance as to what's

10 going to occur there and for how long it's going to11 occur, which is actually pretty rare. In a land use12 analysis, you're never quite sure how long something13 might be there or be redeveloped or changed or14 something.15 So it puts some certainty in the16 equation, I'll say that. I'm not sure I followed the17 rest of your question.18 Q Certainly. Does it also put some certainty19 in the equation as it pertains to the Waste Management20 proposed expansion?21 A Well, certainly, now that you have a neighbor22 that you know something about and you know it's going23 to be, you know, a hill with an elevation of 795 --24 essentially a hill with an elevation of 795, and it's25 going to be in the vacant, open and post-closure for

Page 778

1 30 years.2 Q And as you mentioned, it's one of the3 landfills that cradles the expansion area?4 A That's right.5 Q It will be higher than the proposed expansion6 by Waste Management?7 A That's true.8 Q It will be between --9 MR. COX: Objection, leading.

10 JUDGE SCUDDAY: Let him ask the11 questions.12 Q (BY MR. RILEY) It will be between the13 proposed expansion area in the Waste Management14 landfill and the Harris Branch neighborhood?15 A That's right.16 Q Also between the proposed expansion and the17 Bluebonnet Elementary School?18 A Right.19 Q So without going through all the things that20 the BFI landfill will be between, the land use21 analysis that you conducted as it pertains to this22 application appreciated the existing and proposed use23 of the BFI landfill. Correct?24 A Yes.25 Q Now, there were questions earlier about the



56 (Pages 779 to 782)

Page 779

1 development of the BFI landfill -- actually, the2 questions were, "How did your analysis change if the3 BFI landfill were to cease operations," I think your4 answer is just, to orient you, were along the lines5 of, "Well, it depends what happened with that property6 after" --7 MS. FARHADI: Objection, testifying.8 MR. RILEY: I'm just trying to orient9 him.

10 JUDGE SCUDDAY: Folks, it's getting late11 in the day. Let's get on with it.12 Q (BY MR. RILEY) In your experience and in all13 the landfills you've been consulted on, do you know of14 any landfill that has been developed into residential15 property following closure?16 A None that I'm aware of, no.17 Q Is it your expectation or in your opinion, is18 it likely that the BFI landfill would be developed19 into single-family or multifamily, for that matter,20 residential property?21 A I think it's very unlikely to be developed in22 anything other than open space.23 Q Are you generally familiar with the 30-year24 post-closure requirements once a landfill ceases25 active operation?

Page 780

1 A Generally, yes.2 Q Would you expect that BFI is subject to those3 requirements and must maintain the landfill in4 post-closure?5 A I'm quite sure that's true.6 Q There were a number of questions about,7 frankly -- at least one question about individuals8 who've offered testimony in this matter who are9 represented -- well, by -- it's the Northeast

10 Neighbors Coalition -- and you were asked about11 whether you've ever met Evan Williams. Do you recall12 that question?13 A Yes.14 Q As it pertains to a land use analysis, are15 interviews with individuals in your experience16 helpful?17 A It's not a technique that I employ.18 Q Do you know of any other land use expert,19 perhaps, that you have interacted with at a conference20 or just casually that has conducted individual21 interviews of adjacent landowners as to their22 preference?23 A Not for a facility such as this. For other24 types of facilities you might do it, but not a25 landfill.

Page 781

1 Q And is there a reason in your experience that2 that's -- it's not appropriate or it's not something3 you -- a step you would take -- or you said something4 earlier about expecting complaints and not being5 surprised.6 A I think that's part of it. And then, you7 know, you are trying to be responsive and be a good8 neighbor, but unlike, let's say, if you are working on9 a major park -- developing a park -- you want to find

10 out what people want to do and how they want to use it11 and where the trails might be and the restrooms and12 the softball fields.13 I've done a lot of work like that. You14 get a lot of input on that, but those are public15 facilities, you know, in which people have a16 legitimate input into it. And that's much less true17 with a private facility, just in general.18 MR. RILEY: I think I'm done, Judge. If19 I could just have one minute to --20 JUDGE SCUDDAY: Quickly.21 MR. RILEY: -- reflect. One brief22 subject matter.23 Q (BY MR. RILEY) There has been discussion24 of -- I probably will not recall the precise words25 about the preferred development area or zone in, I

Page 782

1 believe it's the City of Austin designation. Is that2 correct?3 A The City of Austin and their Austin Tomorrow4 Plan and in their Smart Growth Initiative.5 Q I believe you were asked some questions about6 that earlier. How many zones are there in the city of7 Austin? If I'm asking a question inartfully, it just8 means -- is there more than the preferred development9 zone in the city of Austin?

10 A Well, there's zoning designations, and it's11 important to say we're not talking about that, I don't12 think. The city has a guidance document in force now13 to my knowledge that's called the "Austin Tomorrow14 Plan," and that's a comprehensive plan and it's a15 policy plan and policy statement and guidance and maps16 for the city of Austin and its environs, including the17 ETJ -- extraterritorial jurisdiction.18 The city has divided its jurisdictions19 into two zones for this purpose. One is called the20 Drinking Water Protection Zone, which is, generally21 speaking, west of MoPac -- Loop 1 -- in the city of22 Austin and the Desired Development Zone.23 That zone is essentially everything else24 in the city of Austin and its ETJ. So you have two25 choices in terms of what zone you are going to be in.



57 (Pages 783 to 786)

Page 783

1 There's not a third choice. You are going to be in2 one or the other.3 Q So if there's only two choices, is it safe at4 least from your perspective to assume that it would5 not be appropriate from a land use perspective to put6 a landfill or expand a landfill in a Drinking Water7 Protection Zone? Is that how you say it?8 A That's the way I would interpret the city of9 Austin plans and policies, and, hence, my conclusions

10 in my report -- at least one of my conclusions in my11 report.12 Q Which I think, if I'm understanding13 correctly, would be that all other areas are in the14 preferred development zone?15 A Desired development zone.16 Q I'm sorry, Desired Development Zone.17 A Right.18 Q So when a witness or someone were to refer to19 this proposed expansion as being in the Desired20 Development Zone, it's only as to distinguish it from21 being in the Water Protection Zone within the city's22 jurisdiction?23 A Right.24 MR. RILEY: Thank you, Your Honor.25 JUDGE SCUDDAY: All right. I'll remind

Page 784

1 you that we've got less than an hour for recross.2 Ms. Cox?3 MR. BIRCH: Your Honor, I think I'm next4 in order. Thank you.5 JUDGE SCUDDAY: Mr. Birch. I'm sorry.6 RECROSS-EXAMINATION7 BY MR. BIRCH:8 Q Mr. Worrall, just to clarify one item, on the9 TCEQ's approval of the CAPCOG plan, do you remember

10 that in Exhibit APP-218?11 A I've got -- Mr. Birch you're not talking12 about COA-2, I guess?13 Q Well, I'm actually looking --14 JUDGE SCUDDAY: It's in the application.15 MR. BIRCH: In the application, APP-218.16 JUDGE SCUDDAY: Or in the Applicant's --17 A Okay.18 JUDGE SCUDDAY: Same binder.19 MR. BIRCH: Oh, I'm sorry. It's the20 prefiled.21 JUDGE SCUDDAY: Prefiled, APP-218.22 A Okay. I've got that.23 Q (BY MR. BIRCH) Could you go to Page 2, the24 Bates No. Page 2 --25 A Okay.

Page 785

1 Q -- the actual Page 2 of that document? And2 if you will look at the top, Section I.B., do you see3 that? You haven't gotten there yet?4 MR. RILEY: May I catch up, too? Page 25 of this exhibit? Is that where we are?6 MR. BIRCH: Yes. It's APP-218, Page 2.7 A Yes, sir, I'm there.8 Q (BY MR. BIRCH) Okay. Could you read that9 line at Section 1 -- top of the page, Section I.B.?

10 A I.B. at the top of that page says, "This11 regional plan is based on the materials dated July 10,12 2002 as revised on May 22, 2006.13 "These materials are incorporated into14 this regional plan as if fully set out herein."15 Q As Mr. Riley was going through that plan, do16 you know whether those revisions identified there are17 actually incorporated into this plan or not?18 A I don't know that specifically. I'm sorry.19 Q Now, when you do your land use review, you20 follow the procedures, I think, you identified in21 330.61(g) and (h). Is that correct?22 A Yes, sir.23 Q And 330.61(h) requires you to determine the24 impact on the surrounding area. And if you need to25 look at that rule, you're welcome to do that.

Page 786

1 A Okay.2 Q And it identifies there in (h) that -- the3 second sentence says, "The primary concern is that the4 use of any land for a municipal solid waste facility5 not adversely impact human health or the environment."6 Do you see that?7 A I recall the language, but I lost the8 citation. I'm sorry.9 Q It's 330.61(h).

10 A Okay. I'm at the citation. You're talking11 about the first sentence there, Mr. Birch?12 Q The first and second sentence. The first13 sentence simply says "impact on surrounding area."14 A Uh-huh.15 Q And the second sentence -- do you see that --16 "A primary concern is that the use of any land for a17 municipal solid waste facility not adversely impact18 human health or the environment." Do you see that?19 A Right. I see that.20 Q Now, I think you also testified during your21 redirect that one of the important factors for you to22 consider is the use and enjoyment of property. Is23 that correct?24 A Yes, sir.25 Q And earlier I think you also -- did you



58 (Pages 787 to 790)

Page 787

1 testify that you assume a facility is in compliance2 with the regulations?3 A Right. Other than the ones I'm examining,4 yes.5 Q Correct. And Mr. Riley gave you some6 additional compliance information. I think you said7 that that would tend to reinforce your opinion of the8 compliance. Is that correct?9 A When we were talking about that agreed order?

10 Q Yes.11 A Yes, sir.12 Q Now, if you found information that would tend13 to show that a facility was not in compliance, would14 that tend to make you feel less confident about your15 land use analysis?16 A Not in compliance in ways other than what we17 are citing right here?18 Q I'm sorry. Could you explain that?19 A Well, I guess I'm not understanding your20 question exactly.21 Q Well, in other words, when you found -- if22 you find additional information indicating a facility23 is in compliance, I think your testimony was that that24 tends to reinforce your opinion of your land use25 analysis. Is that correct?

Page 788

1 A That's a pretty good characterization, I2 think. Yeah.3 Q Okay. Well, if you find information that4 tends to show that perhaps the facility's compliance5 was not what you thought it was, would that tend to6 reduce your confidence in your land use analysis?7 A I guess it would depend on what that factor8 was, as to whether it would be something that would9 affect the land use compatibility issues.

10 Q What if you found there were conditions from11 a facility that would result in contaminants leaving12 the facility property?13 A That would probably affect my opinions about14 compatibility.15 Q Would part of use and enjoyment of property16 include residents and nearby property owners being17 able to enjoy their property without having18 contamination, be it whatever?19 A Yeah, I think that's correct.20 Q So if it was determined that landfill gas,21 for example, was leaving a landfill property and22 affecting neighbors, would that be affecting their use23 and enjoyment of property?24 A If it was affecting neighbors in a way25 that -- I guess by definition, yes, it would be doing

Page 789

1 that.2 Q And what about groundwater? If it was3 determined that groundwater contamination was leaving4 a municipal solid waste facility and affecting5 neighbors, would that affect your determination?6 A That's a good question. And maybe a good way7 to begin to differentiate this just a little bit,8 because if your neighbors are, let's say, on a9 municipal water system, which is to say -- well,

10 municipal water system versus wells, then I think you11 could make a distinction that one of them would be12 more impacted of the use and enjoyment and health than13 the other.14 So I don't think there's a single answer15 to that.16 Q Well, you're not saying that the adjacent or17 the nearby property owner to a landfill would actually18 have to be using the groundwater to be impacted by the19 groundwater, would you?20 A Well, we are talking about the use and21 enjoyment of the property. So I think we are talking22 about use and enjoyment of the mineral rights or how23 we would classify the groundwater, yes.24 Q What if the landowner decided to sell its25 property, would the fact that contamination was in the

Page 790

1 groundwater under that person's property affect their2 use and enjoyment of the property?3 MR. RILEY: Objection. If they're4 selling the property, are they using it and enjoying5 it?6 JUDGE SCUDDAY: I believe they would7 enjoy the profits from it.8 MR. RILEY: They may enjoy the profits.9 JUDGE SCUDDAY: Answer the question.

10 A Yes, sir. I'm not sure how the sale of the11 property would impact on the use and enjoyment.12 Q Well --13 A I mean, I'm not trying to be --14 Q Well, Mr. Worrall, if a landowner owns15 property, would not part of the use and enjoyment --16 and I'm not a land use expert -- but would part of the17 use and enjoyment be the ability to sell the property18 at market rate?19 A It hadn't occurred to me till this moment,20 but I suspect that's right.21 Q Okay. Well, if it turns out the market rate22 had been reduced because there was contamination23 discovered on the property, would that affect its use24 and enjoyment?25 A Probably would.



59 (Pages 791 to 794)

Page 791

1 Q Now, earlier I think Ms. Swanholm had2 mentioned something about Love Canal. Are you3 familiar with Love Canal at all?4 A Not in any important way.5 (Laughter)6 Q (BY MR. BIRCH) Well, let me ask you this:7 Are you familiar with Love Canal in the sense that8 Love Canal in many ways kind of kicked off the modern9 environmental movement?

10 A I'll accept that.11 Q And you understand it was a hazardous waste12 site?13 A Yes, sir, I do understand that.14 Q Do you think the Love Canal affected the15 nearby property owners' use and enjoyment of their16 property?17 MR. RILEY: If it helps, we will18 stipulate that indeed it did.19 Q (BY MR. BIRCH) Let me ask you this, then,20 based on that stipulation: If you did a land use21 analysis for the property in the vicinity of Love22 Canal, do you think that the presence of the hazardous23 waste would affect that land use determination?24 A Assuming Texas rules and --25 Q Let's assume Texas rules.

Page 792

1 A It's not in the state of Texas. Correct me2 if I'm wrong. Right?3 Q Yes, let's assume the Texas rules.4 A And that it's a municipal solid waste5 facility and those are the rules we are applying?6 Q Yes.7 A Okay. And that we have a -- we're8 hypothetically assuming that we've contaminated the9 groundwater as a result of this municipal solid waste

10 facility?11 Q Well, let's back up. Maybe we're making it a12 bit more complicated than need be. Let's say that we13 have a -- you said you had never done a land use14 analysis for a hazardous waste facility. Is that15 correct?16 A That's correct. Yes, sir.17 Q But you have done them for municipal solid18 waste facilities?19 A Right.20 Q So let's hypothetically assume there was a21 municipal solid waste facility in Texas and that22 municipal solid waste facility has a hazardous waste23 facility located on-site.24 Would you have to take the presence of25 that hazardous waste facility into account as you're

Page 793

1 doing your land use analysis?2 A I think it would be subsumed by the municipal3 solid waste analysis that I would do.4 Q Okay. Well, let's make the additional5 assumption now that that hazardous waste facility was6 leaking.7 A Okay.8 Q And that hazardous waste facility was causing9 groundwater contamination to the adjacent landowners.

10 Would that affect your land use analysis for that11 facility?12 A Well, it would be contrary to the assumptions13 that I stated at the outset, that we were dealing with14 the facility that is in compliance in waste. You15 understand that. Right? So it's no longer part of16 the assumption I make to do that.17 So if I knew that going into it, I think18 I would have difficulty determining that we've got19 land use compatibility. Had I discovered it after the20 fact, I might have to revisit my findings.21 Q I just want to make sure, because I think22 both of us talked a lot during the question and answer23 there. But I think you said that is something you24 would have to take into account as you did your land25 use analysis if there was a hazardous waste facility

Page 794

1 and it caused groundwater contamination at a municipal2 solid waste facility.3 MR. RILEY: Sorry. I didn't want to4 interrupt, but I will object. I don't know of any5 connection in this case to a hazardous waste facility.6 MR. BIRCH: But, Your Honor, this is --7 first off, it's a hypothetical.8 JUDGE SCUDDAY: I understand. Let's --9 I think he answered. He said, "Yeah, he would have to

10 take it into consideration and revisit it."11 MR. BIRCH: Thank you, Your Honor. I'll12 move on.13 Q (BY MR. BIRCH) Are you familiar,14 Mr. Worrall, with the CIRCLIS?15 A CIRCLIS?16 Q Yes.17 A I know the initials. I don't really know18 what it is.19 Q If we just say it's a facility -- it's a list20 that identifies hazardous waste facilities.21 MR. RILEY: We could say that, but22 there's no evidence to that effect, and this witness23 can't testify to it.24 Q (BY MR. BIRCH) Mr. Worrall, if there was a25 list --



60 (Pages 795 to 798)

Page 795

1 MR. RILEY: I have an objection.2 JUDGE SCUDDAY: Okay. Sustained.3 MR. BIRCH: What's the objection?4 JUDGE SCUDDAY: Well, the objection is,5 he said he doesn't -- he's not aware or he doesn't6 know what it stands for, and then you're telling him7 what it stands for.8 MR. BIRCH: Okay. Well, can I ask him a9 hypothetical question, Your Honor?

10 JUDGE SCUDDAY: Yes.11 Q (BY MR. BIRCH) If there was a list12 maintained by the Environmental Protection Agency --13 are you familiar with the Environmental Protection14 Agency, Mr. Worrall?15 A Yes, sir.16 Q If there was a list maintained -- and they're17 sometimes referred to by the EPA. Is that correct?18 If there was a list of hazardous waste facilities19 maintained by the EPA and you were reviewing land --20 you were conducting a land used analysis for a21 municipal solid waste facility and doing your research22 you found that this facility was on that EPA list, is23 that something you would have to consider doing your24 land use analysis?25 A Well, what you're asking me about strikes me

Page 796

1 as more of an environmental assessment-type of2 procedure than a land use compatibility study.3 So if I discovered that, I would take it4 into account. But it's not research that I typically5 would do in order to conduct my land use compatibility6 studies.7 Q Now, also during your redirect, Mr. Riley8 asked you about the CAPCOG conformance letters between9 the BFI facility versus the Waste Management facility.

10 Do you recall that?11 A Yes.12 Q And I think during your response at one point13 you kind of speculated that part of the reason that14 the BFI facility was found to be in conformance was15 because it was going to close by 2015. Do you16 remember that?17 A Conditional conformance. I think it was18 conformance conditioned on the closure, frankly.19 Q Well, do you -- could it also be there are20 other reasons that that conditional conformance letter21 was provided for BFI and not for the Waste Management22 facility?23 A Could be.24 Q Could it be possible that there was concerns25 with the types of waste being located at one site

Page 797

1 versus the types of waste located at the other site?2 MR. RILEY: Objection. It sounds like3 there's a conditional conformance letter that sets out4 the conditions. So if that's what we're asking what5 the conditions were, then I think that's a better6 approach.7 MR. BIRCH: Your Honor, Mr. Riley just8 asked him to speculate on the possible reasons for the9 conformance, and I'm just trying to clarify there

10 could be other reasons in addition to that one.11 JUDGE SCUDDAY: Overruled.12 A To the best of my recollection, Mr. Birch, I13 believe -- to the best of my knowledge, is a better14 way to say it -- I believe that they -- they, BFI --15 got a conditional conformance letter because they16 agreed to close in 2015, and that's pretty much the17 sum total of my understanding.18 I don't know if that's entirely accurate19 or not, but that's my understanding.20 Q So it could be what you speculated. It may21 not be. It may be other things?22 A Maybe.23 Q It may be things in addition to the closure24 by 2015?25 A Could be, yes.

Page 798

1 Q You also discussed the fact that you're not2 aware of any residences that are constructed on a3 municipal solid waste landfill after closure. Is that4 correct?5 A That's correct. Not -- that's correct. I6 have no knowledge of that.7 Q Okay. What about other types of facilities;8 for example, golf courses?9 A Yes, that's true. There's quite a few

10 examples of recreational facilities of which I11 included a golf course constructed on a closed12 landfill.13 Q And soccer fields?14 A Right.15 Q That sort of thing?16 A Right.17 Q Would those things -- for example, the BFI18 landfill will close in 2015.19 A Uh-huh.20 Q If there are these types of recreational21 facilities constructed on the BFI site, would that22 affect your land use analysis after that facility23 closes?24 A Well, yeah, it would affect it, but that25 would be something I would have to evaluate at that



61 (Pages 799 to 802)

Page 799

1 time. You know, I couldn't do it in anticipation of2 that, I don't think, unless I had certain knowledge of3 that -- and I don't.4 MR. BIRCH: Mr. Worrall, thank you. I5 pass the witness.6 JUDGE SCUDDAY: Ms. Cox?7 RECROSS-EXAMINATION8 BY MS. COX:9 Q Mr. Worrall, you told Mr. Riley in his

10 questions to you that Waste Management has an average11 compliance rating. Do you recall that?12 A Yeah, that's my understanding of their13 compliance rating -- compliance history I think it's14 called.15 Q And how is that your understanding of their16 compliance history?17 A Just from documents I've reviewed as a result18 of preparing for my testimony.19 Q When I asked you earlier today if you had20 done any research into compliance history, you had21 stated "No."22 A Oh. Well, if that's the case I guess I23 wrong, but that doesn't strike me as research into it.24 That was just something that, you know -- I didn't25 pour through it.

Page 800

1 Q Mr. Riley also asked you about the agreed2 order and asked -- I believe he asked you if there had3 been any other orders that had ever been entered4 against Waste Management in the past seven years.5 A I think he asked me that, yeah.6 Q And do you know if there have been any7 complaints about nuisances generated by the landfill8 in the past seven years?9 A No, I don't know that.

10 Q Mr. Riley also asked you some questions about11 what he called supply and demand.12 MR. RILEY: Actually, it was the13 witness's term.14 MS. COX: I'm sorry.15 Q (BY MS. COX) What you originally called16 supply and demand. And I just want to make sure I17 understand your testimony correctly.18 There are approximately 25,000 lots to19 be built and there are -- is that correct?20 A Generally, yes.21 Q And how many -- about a thousand people22 projected to move into those lots?23 A A thousand units being absorbed.24 Q A thousand units, which leaves us with 24,00025 extra units as a surplus?

Page 801

1 A Well, we talked there being an inventory of2 single-family lots that I'm just going to say off the3 top of my head was about 17,000, and that there were4 plans for an additional 8,000 -- again, pardon my5 rounding off -- but an additional 8,000 multifamily6 units within five miles.7 And so that gives us what I was calling8 a supply or an inventory of 25,000 units. And we9 estimated that the growth within that five miles would

10 be -- or the absorption or the demand would be roughly11 1,000 units per year.12 Q So that would leave us with quite a surplus,13 wouldn't it?14 A Yes. Well, depending on how things shook15 out. My point is that there's -- there's quite an16 inventory of lots available.17 Q And there's quite an inventory of lots. In18 your experience in looking at land use, is it19 customary for builders to start developing areas if20 there's not a supply to meet that demand?21 A Well, it's all over the board with supply and22 demand. When we talk about inventory of lots, those23 are planned lots. These aren't lots that you and I24 could drive up to and say, "Gee, I want to put a house25 here."

Page 802

1 In other words, it could be a whole2 section of land where it's still a cornfield or3 something. And we know based on permit records and4 the plan submissions that some day there will be 1,0005 lots here.6 I don't want to say "take that supply7 with a grain of salt," but it is -- it's those things8 that are in the pipeline, you might say, but they are9 not finished lots, necessarily.

10 MS. COX: Those are all my questions.11 Thank you.12 JUDGE SCUDDAY: Ms. Farhadi?13 RECROSS-EXAMINATION14 BY MS. FARHADI:15 Q Hello, Mr. Worrall.16 A Hello.17 Q I just have a few questions. So they might18 skip around.19 JUDGE SCUDDAY: You've told us that20 before.21 (Laughter)22 MS. FARHADI: True.23 Q (BY MS. FARHADI) First of all, if you24 recall, Mr. Riley had you approach TJFA Exhibit 20225 and delineate where you thought -- was it the property



62 (Pages 803 to 806)

Page 803

1 boundary that you were pointing out?2 A I think what he asked me to do was point out3 the area where the expansion would occur.4 Q Okay. And from what I saw you delineate with5 your finger, it appeared that you did not include, if6 you look at the picture, those ponds or body of water7 there.8 A That's right. I didn't.9 Q So that is outside the expansion area?

10 A Honestly, I don't know that. I didn't11 include it in -- my belief is that -- that may be12 outside. It's close to the boundary of those ponds.13 I don't know if those ponds are inside it or outside14 it.15 Q Okay. So for purposes of your analysis, you16 took it right up next to the ponds, essentially?17 A My analysis was not based on this. It was18 based on the information in my APP-302, and there I19 could show you where I would delineate that.20 Q Okay. Let's go there, please.21 A Okay. Great. I think it's APP-302.22 JUDGE SCUDDAY: He's shown us that23 several times, Ms. Farhadi. So what is it we're24 trying to establish?25 MS. FARHADI: I'm trying to figure out

Page 804

1 if those ponds are in the expansion area that he2 considered for his analysis or not.3 JUDGE SCUDDAY: He doesn't know.4 A I don't know.5 Q (BY MS. FARHADI) Are they not on your map in6 APP-302?7 A We can look, but --8 JUDGE SCUDDAY: They are not on the map.9 I can see that they are not on the map. Mr. Smith

10 said he didn't think they were part of it.11 MS. FARHADI: You have a better memory12 than I do, Judge.13 Q (BY MS. FARHADI) Okay. My next question,14 still on the map, is, when you discussed the area in15 the upper portion that in that picture appears to be16 just dirt and you testified, I believe, that that's17 now residences. Is that correct?18 A That's correct. They were either built or19 are being built. They are in a stage of construction20 up there. It's much more complete than it shows21 there.22 Q Is that within the five-mile circle or the23 one-mile radius -- excuse me -- of the facility?24 A I don't think it's within the one-mile, but I25 do believe it's certainly within the five-mile. I can

Page 805

1 confirm that if you want.2 Q So that could be considered adjacent to the3 facility, then. Correct?4 A No, ma'am, it could not. I don't think5 that's true. It's at least a mile away. It's more6 than a mile away.7 Q How are you defining "adjacent" as you're8 using it right now?9 A The same way the Judge is.

10 (Laughter)11 JUDGE SCUDDAY: No, I didn't say --12 (Laughter)13 A I'm doing it by -- it means right next to or14 abutting.15 Q Right next to or abutting.16 A Right.17 Q If I could have my assistant approach the18 witness, Your Honor. She's going to be showing your19 attorney first and then --20 (Laughter)21 Q (BY MS. FARHADI) She's going to be showing22 you two dictionaries. One is the Black's Legal23 Dictionary and one is the American Heritage24 Dictionary, I believe, to look at the definition of25 the term "adjacent" so that we can all be on the same

Page 806

1 page.2 JUDGE SCUDDAY: And while she's doing3 that, I misspoke. It wasn't Mr. Smith that said that.4 It was Mr. Dominguez that said it, about the pond.5 A Thank you.6 Q (BY MS. FARHADI) Okay. Mr. Worrall, if you7 could please locate the word "adjacent" in both of8 those dictionaries.9 A Okay. I will. "Next to or adjoining" is the

10 American Heritage --11 Q Could you please read the entire definition12 starting with numerical "1" next to that word?13 A Starting with what? I'm sorry.14 Q I believe they are numbered -- the15 definitions. Correct?16 A Okay. "Adjacent: Adjective; 1, close to,17 lying near; 2, next to or adjoining." It looks like18 it's from Middle English.19 Q Okay. Now, if you could skip to the next20 dictionary, please, and do the same for us.21 A Okay.22 Q And this is the Black's Law Dictionary you're23 reading now. Is that correct?24 A Black's Law Dictionary. That's correct.25 Q Thank you.



63 (Pages 807 to 810)

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1 MR. RILEY: Which edition is that,2 because --3 Q Revised fourth.4 JUDGE SCUDDAY: The one I've got. So5 it's the old one.6 A The word I find much more compelling is7 "adjoin" --8 Q We'll get there.9 A -- which is --

10 Q If you could first read "adjacent."11 A Okay. "Adjacent: Lying near or close to;12 sometimes contiguous; neighboring."13 Q You can continue on.14 A Okay. There's some references there that15 don't mean anything to me. And then the next English16 portion of this, it says, "Adjacent implies that the17 two objects are not widely separated, though they may18 not actually touch."19 Q Thank you very much, Mr. Worrall.20 A You're welcome.21 Q Are you still of the opinion that the new22 homes that you were referencing are not adjacent to23 the facility?24 A Yes, I am of that opinion.25 Q Okay.

Page 808

1 A They're more than a mile away, just FYI.2 Q Thank you. Also, you talked about BFI and3 the closure height that it's expected to be. Will the4 BFI facility be between this proposed expansion and5 the Pioneer Crossing PUD?6 A No, it will not.7 Q Will it be between this proposed expansion8 and the Barr Mansion?9 A No, it will not.

10 Q Also, Mr. Riley asked you a couple of11 questions about the desired development zone as a term12 within the city of Austin?13 A Yes, I recall that.14 Q And I believe he asked you, "Is it only to15 distinguish from the Drinking Water Protection Zone.16 MR. RILEY: That's, actually, not my17 question that I recall.18 JUDGE SCUDDAY: That's not what he ask19 him. He said Mr. --20 Q (BY MS. FARHADI) Well, my question, I guess,21 is, is it only for that purpose and no other purpose?22 A Well, far be it for me to determine what the23 purposes of it are. But my point was to try to24 suggest that there are only two zones that are25 mutually exclusive in the city of Austin.

Page 809

1 One of them is Drinking Water Protection2 and one is Desired Development Zone. So the way I3 understand the Austin Tomorrow Plan and the Smart4 Growth Initiative is, in Austin's jurisdiction you are5 either in one or the other. There's no more choices.6 Q Correct. But the use of the term --7 MR. RILEY: Objection to the word8 "correct," because that seems to --9 MS. FARHADI: Thank you. I appreciate

10 your response.11 Q (BY MS. FARHADI) But is the use of the term12 "Desired Development Zone," could that also be for any13 other reason than to distinguish it from the Drinking14 Water Protection Zone?15 A Oh, sure. In fact, I talk about that in my16 testimony, I think. I was just making that17 distinction so the Judge and others would understand18 that you've only got two choices here.19 So, yeah, it's got its purposes. And I20 think to summarize what I understand the city of21 Austin's purposes is, it says that this is where we22 want growth to occur. That's how I've generally23 defined it.24 Q Thank you. On to my last point. To the25 agreed order that Mr. Riley took you through, I

Page 810

1 believe you testified that there was one thing under2 the allegation section that you felt would rise to an3 odor nuisance.4 A That's my understanding, yes, ma'am.5 Q Do you know whether or not any of the other6 alleged violations in that list might cause odor7 issues?8 A Well, they weren't flagged as such. They9 were flagged as problems with leachate collection and

10 with gas management. I'm trying to think of what else11 right offhand.12 Those are the couple that come to13 mind -- damaged flange and a few things. But none of14 them explicitly said, you know, odor as such would15 cause impairment of use and enjoyment.16 Q I understand you're not a landfill engineer,17 Mr. Worrall. So reading the allegation about18 leachate, for example, that does not imply an odor19 problem to you?20 A Well, I understand enough about it that I21 know that leachate could cause an odor. But that22 isn't how it was cited in here. It was cited as a23 leachate problem, not an odor problem, unlike the24 thing that was cited as an odor problem.25 Q Okay. And, finally, you state that -- well,



64 (Pages 811 to 814)

Page 811

1 let me just ask you. How do you know that there's not2 been any other violations in the past seven years at3 this facility?4 A Well, they haven't been brought to my5 attention.6 Q Okay. No one has brought it to your7 attention, but you haven't done any research to8 determine that. Is that correct?9 A Not research in the sense of going -- you

10 know, searching TCEQ records or interviewing people.11 MS. FARHADI: Okay. Thank you. I will12 pass the witness.13 JUDGE SCUDDAY: Mr. Friedman?14 MR. FRIEDMAN: I have no questions.15 JUDGE SCUDDAY: Ms. Swanholm?16 MS. SWANHOLM: Yes.17 RECROSS-EXAMINATION18 BY MS. SWANHOLM:19 Q I just have a few questions.20 A All right.21 Q I'm not going to ask you about the22 dictionary --23 MR. RILEY: I can't hear you, counsel.24 I'm sorry.25 JUDGE SCUDDAY: Get up to the mic. We

Page 812

1 can't hear you.2 MS. SWANHOLM: Oh, sorry.3 Q (BY MS. SWANHOLM) Counsel for Waste4 Management mentioned a famous Star Trek quote about5 the needs of the many outweighing the needs of the6 few.7 MR. RILEY: The Wrath of Khan, if you8 want the actual reference. It's the Wrath of Khan,9 was the --

10 Q (BY MS. SWANHOLM) A land use compatibility11 finding, is that a black or white determination in12 your mind, or is it more of a multi-factor13 determination?14 A You know, that's a really good question. I15 wish I could have gotten that maybe hours ago. But I16 don't think it's either black or white or -- I mean,17 at some point for me it becomes black and white, but18 it's gray to the point where I decide that my opinion19 is that it's compatible or not. Once I decide that,20 then I just get on down the road.21 Q Okay. You also mentioned earlier that in the22 Lewisville landfill that you worked on changes were --23 in the Lewisville landfill that you worked on, you24 mentioned that changes were later made to address your25 early concerns with the site.

Page 813

1 MR. RILEY: Objection. I didn't ask any2 questions about the Lewisville landfill.3 JUDGE SCUDDAY: This is recross. You4 can only deal with what he asked on redirect.5 MR. RILEY: It's beyond the scope.6 MS. SWANHOLM: I'm sorry. I'll skip7 that question.8 Q (BY MS. SWANHOLM) Is there anything about9 the Waste Management plan, in reference to the Star

10 Trek quote, that you think could be changed to address11 some of the concerns that have been mentioned by the12 protestants in their prefile, the City, the County and13 TJFA?14 A I honestly -- the Star Trek quote went right15 over my head. I don't know what it is, and I would16 appreciate it if you would repeat it. Could you17 repeat that for me?18 JUDGE SCUDDAY: She's asking you, is19 there anything in light of all of the prefiled20 testimony of the protestants, the City and the County,21 were there any changes that you failed to make.22 A Okay.23 JUDGE SCUDDAY: To his analysis or to24 the application?25 Q (BY MS. SWANHOLM) Well, let's first talk

Page 814

1 about changes to your analysis.2 A Okay. I don't think the analysis -- I mean,3 the way I do my analysis is relatively standard. I've4 done a lot of them. I understand the rules, and I5 kind of work through them. Every one is different, of6 course, because every site in the neighborhood is7 different.8 So I'm not sure my analytical approach9 would change. I think that if I were to do -- you

10 know, if I were to suggest any changes or make any11 recommendations that I wouldn't -- what I'd like to do12 is tell you about the things that haven't come out13 that are positive.14 I haven't been able to talk about the15 wildlife preserve on the west-hand side of it. We16 haven't had a chance to talk about that. We haven't17 had a chance to talk about the buffer over on --18 JUDGE SCUDDAY: Is that in your19 prefiled?20 A I don't believe it is. Too bad for me.21 Okay.22 JUDGE SCUDDAY: You have to blame23 Mr. Riley for that.24 MR. RILEY: Actually, you would have to25 blame Mr. Moore.



65 (Pages 815 to 818)

Page 815

1 (Laughter)2 A I haven't had a chance to talk about my3 favorite Star Trek episode, but that's also not there.4 So, honestly, nothing comes to mind. One thing I will5 say that I am particularly -- I think Waste Management6 has done a good job on -- and it is in my prefile,7 Your Honor -- is on the east side of the landfill as8 it fronts Giles Road.9 Q I hate to stop you, but I'm afraid that's not

10 what I asked about.11 A Okay.12 JUDGE SCUDDAY: She doesn't want to know13 the good things, just the bad things.14 MS. SWANHOLM: Well, actually, that's15 not true. OPIC is a neutral party, but that --16 MR. RILEY: Well, that's --17 (Laughter)18 MS. SWANHOLM: -- isn't the question19 that I asked.20 Q (BY MS. SWANHOLM) Are there any -- well,21 let's just move on. Are there any changes that you22 could see making to the application that could address23 some of the concerns raised here?24 A I must say, no, I don't think so off the top25 of my head. I honestly believe, as I was saying

Page 816

1 earlier, that we've got more than 600 acres of2 landfill here in toto, and we're adding 71 acres of3 new landfill to this.4 I think as a result, this is not a5 material change in this area. I'm not worried about6 something looming over it as talked about in7 Lewisville. It's kind of tucked away, and I don't8 think it's cradled, if you will. I don't think that I9 have any concerns that jump out at me as improvements

10 that I could make based on what I now know.11 Q Okay. What about something even small like12 adding trees to block the view of the landfill as some13 of the protestants have described they have a problem14 with view and it affects possibly, you know, their15 livelihood?16 MR. RILEY: I enjoy a good discussion as17 much as the person, but I'm going to object. There18 was no limitation on the last question. The witness19 has answered.20 MS. SWANHOLM: Well, no. I mean, he21 said there was nothing, and I'm asking him, well, what22 about something specific?23 MR. RILEY: My objection is it's asked24 and answered. The witness has been thorough.25 JUDGE SCUDDAY: Well, she's got -- it's

Page 817

1 a follow-up. I'll allow it.2 A So, to my knowledge, at some point during3 this procedure -- it may not have been during 249D.4 It might be 249C, which is ancient history, I guess.5 Waste Management, in fact, offered trees to the6 neighbors, to my knowledge, and some took them up on7 it. Because the best way to screen something like8 this is to do it in your own yard, not at the site.9 So I think that that offer has, in fact,

10 been made up already -- or offered up, I should say.11 Q Okay. Well, what about in this instance12 trees on Waste Management's property?13 A It would require analysis to see where we're14 trying to screen from. But I would repeat my answer,15 that we're better off screening off-site than we are16 on-site.17 But if Waste Management would indulge me18 in doing it, we could do an analysis to see where we19 might put trees on the landfill. But it's not20 apparent to me where that would be and from what21 viewpoint. You have to be real deliberate and22 specific about what views you are trying to screen,23 and I haven't done that analysis to be able to answer24 it.25 Q Okay. Well, assuming that you had done the

Page 818

1 research so that you would know at what angle and at2 what position trees would be effective in blocking a3 view, do you think that those would be something that4 could address the problems that some people have found5 with the landfill?6 MR. RILEY: Objection. There were a7 number of qualifiers in the question.8 JUDGE SCUDDAY: There definitely was.9 Ms. Swanholm, move on.

10 Q (BY MS. SWANHOLM) So just to reiterate what11 you've said, you believe that there are no changes at12 all that could be made to the application to address13 any of the concerns, that it's just fine the way it14 is?15 MR. RILEY: Objection. I don't think16 that reiterates what the witness said, and it's been17 asked and answered, if it is a reiteration.18 JUDGE SCUDDAY: He said that he didn't19 see any changes that he would recommend. What else do20 you want to ask him?21 MS. SWANHOLM: Okay. I guess I have no22 further questions. Thank you.23 MS. RICHARDSON: The ED has no24 questions, Your Honor.25 MR. RILEY: I just have a short -- no.



66 (Pages 819 to 820)

Page 819

1 (Laughter)2 JUDGE SCUDDAY: I wouldn't.3 (Laughter)4 JUDGE SCUDDAY: Thank you, Mr. Worrall.5 You can step down. Is there any reason for calling6 Mr. Boecher at this point?7 MR. RILEY: I don't believe so unless we8 can get him done in 20 minutes.9 JUDGE SCUDDAY: I doubt very seriously.

10 I know; you just had a few questions.11 (Laughter)12 JUDGE SCUDDAY: Why don't we just start13 with Mr. Boecher in the morning.14 MR. RILEY: Well, actually, Judge, just15 to refresh everyone's recollection, we talked about I16 have a hearing to attend tomorrow morning.17 Mr. Winter -- J. Winters -- excuse me --18 JUDGE SCUDDAY: We're going to do him19 tomorrow afternoon. Right?20 MR. RILEY: Well, he was going to start21 tomorrow morning, and he's a geologist.22 JUDGE SCUDDAY: Okay. That's right. He23 was going to start in the morning.24 MR. RILEY: Yes, sir, if that's25 acceptable.

Page 820

1 JUDGE SCUDDAY: So we want to start with2 him in the morning --3 MR. RILEY: Yes, sir.4 JUDGE SCUDDAY: -- right -- Mr. Winters?5 And then that will probably take another day. And6 then we might get to the rest of the Applicant's7 witnesses by Friday.8 So at the pace we're going -- a question9 was raised about Good Friday. The way we're going I

10 see us being here the week after Easter. So I suggest11 you guys pick it up. See you in the morning.12 MR. RILEY: Thank you, Judge.13 (Proceedings recessed at 4:05 p.m.)141516171819202122232425





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areas 567:20622:15,16,18626:15 630:7639:2 645:22648:5 656:21738:14 742:2783:13 801:19

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assumptions567:13 679:6793:12

assurance 777:9assure 714:20assured 777:6,8asterisk 713:11

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attorneys 583:9attribute 668:6,10attributed 759:17Austin 562:4,16

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Austin-2 731:21available 621:23

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based 565:12 585:7605:24 615:16



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bases 669:22670:11

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Bates 784:24Beardmore 562:18becoming 700:24

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BFI 571:18 573:12579:1 583:5,7586:19 588:21591:13 592:24593:2 595:3,21,24596:5,19 597:7,7597:19,21 598:1,6599:8 600:21601:16 602:4603:4 604:20605:1,5,12,15,20611:23 623:20627:10 633:4,9,15665:21 676:17677:11 678:2,9679:11 692:9,20693:1 694:13695:7 696:5,16,19697:11 705:22733:14,15 734:21752:21 756:8773:7,25 774:17775:25 776:19777:6 778:20,23779:1,3,18 780:2796:9,14,21797:14 798:17,21808:2,4

BFI's 602:24776:25

bids 693:14

big 634:16 693:2,6bigger 637:6billed 657:21billing 657:10

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birds 566:21,23bit 586:3 600:24

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brief 574:7 616:16781:21

briefly 740:21743:3

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bringing 713:20broad 757:21broadly 755:14broken 716:25brought 610:15

811:4,6



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buffers 706:14builder 622:9builders 801:19building 619:9,12

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bullet 608:1,2611:8 732:11736:9 762:20763:10,12 764:1,5764:6,11,16,18

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call 563:4,6 579:4

621:21 674:4679:9 726:24730:18 766:14

called 565:10587:21 589:19614:25 663:2667:11 682:21684:5 728:14735:15 741:16,18757:14 758:1782:13,19 799:14800:11,15

calling 720:20801:7 819:5

calls 563:10Canal 745:3 791:2

791:3,7,8,14,22capable 688:10capacities 751:21capacity 612:3,21

612:24 613:4,18690:1 750:16,25751:7,16,24754:14,16,24

CAPCOG 590:23590:25 591:5,8,15592:3,11,14 593:6595:23 596:1,4,7596:10,13,15,19596:21,25 597:4,7597:13,20,25598:4,14,21 599:2599:12,20,25601:17 602:15,20603:20 604:1,4,20605:4,23,25606:11,23 610:18611:13,16,18,22707:1 725:25726:7 731:7,13732:14 733:1,10733:16 734:16,20735:12 736:4,8749:10,19 750:9

750:17 751:1,8,9752:3,12,23 754:2754:4,8,11 776:24777:2 784:9 796:8

CAPCOG's 592:7592:18 602:5,23603:7 607:6610:20 734:22735:11 736:1

capital 646:22647:6

Capitol 614:25617:9 638:1 717:9721:14 722:6

capture 723:24captured 646:7capturing 724:1care 589:22carefully 592:22

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case-by-case720:11

casually 780:20catch 785:4category 678:16cause 639:19

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caused 650:2 761:8794:1

causing 793:8cease 605:21 692:9

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centers 632:9,17Central 735:16certain 620:20

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certainty 777:15,18Certified 562:19Chamber 702:10

702:10,11,15703:4

chance 565:20

814:16,17 815:2change 630:13

631:1 651:2652:17 653:8678:18 679:21680:3 692:4,11,19692:23 693:1,3,9693:12,23,23,25694:15 696:12706:5,6 735:21,23761:9 762:2 768:3768:4 769:21,22771:13 774:9779:2 814:9 816:5

changed 617:23,24632:24 633:13639:9 648:5649:24 651:25653:11 729:4730:15 743:1771:11 774:19777:13 813:10

changes 563:22610:15 648:7651:21,21 693:18694:24 695:25772:2 812:22,24813:21 814:1,10815:21 818:11,19

changing 743:2character 659:19

665:8characterization

739:7 788:1characterize

606:21 627:14647:14 679:2695:14 771:20

characterizing603:16 707:19

charge 689:3,4,5chart 636:12,15

638:12 716:24cheaper 639:13



Page 826

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cheese 734:8children 577:10,17choice 732:16

783:1choices 782:25

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762:19 768:25782:1,3,6,9,12,16782:18,21,24783:8 808:12,25809:20 813:12,20

city's 649:19684:11 686:24688:22,23 689:6783:21

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clarity 595:25classification

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568:17 720:19classified 568:17

681:12 700:7classify 755:20

789:23clause 705:12clear 596:25 633:6

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client 742:3 743:9743:17

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closest 684:2,9700:1 710:14714:16 715:6,12

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closure 613:8,10677:19 678:2692:20 696:16777:6,8 779:15796:18 797:23798:3 808:3

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780:10COA-1 755:11

756:18

COA-2 606:7 607:5732:1 734:18763:11 784:12

code 728:17,19729:7 730:12

COG 735:16753:10

cognizant 677:22COG's 746:25

747:13collection 636:4

810:9colloquy 744:7Colonial 684:5color 571:16

623:20come 571:2 587:1

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comes 815:4coming 577:16

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commercially701:18

commission 562:3565:8 663:21,25727:15 728:18,19

728:22 729:20731:1 746:24747:3 748:8,16,17750:6

Commissioners581:9

Commission's649:2 747:12

committee 597:10597:12 598:25599:2 600:9,11,11610:25 749:20

committees 732:16common 755:22commonly 574:25communication

708:4community 565:24

565:24 566:2570:7,8,25 571:14571:19 573:16618:5,7 759:25

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648:8 655:9compared 635:20

722:15comparing 625:17

625:17 722:13compatibility

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compatible 576:4



Page 827

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compelling 754:13807:6

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758:15complaints 578:20

582:8,11,13,16,18582:21,23,25583:3,8,11,14,16583:19,22 584:4,7584:12,18,22,25585:14,17,24586:1,3,9,14,15756:4,7,11,12781:4 800:7

complete 636:4690:15 694:23716:9 804:20

completed 740:14completion 651:9

742:18complex 680:19compliance 567:14

567:24 578:15579:9,11,22680:23 756:20757:7,15 758:19

760:12,22,24762:4,7 787:1,6,8787:13,16,23788:4 793:14799:11,13,13,16799:20

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complying 576:16576:18 765:2

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782:14computed 721:14

722:6computer-aided

571:5concept 753:17,19concern 638:6

656:22 661:3,22662:14 663:12,18672:23 681:23710:15,20 712:10712:20 718:15725:10,13 733:6742:9 758:16759:16 786:3,16

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concerning 591:6597:7 610:19

concerns 578:22579:6 580:12

610:5 674:11675:20 693:6704:18 710:25796:24 812:25813:11 815:23816:9 818:13

conclude 602:18608:16 740:17

concluded 707:15742:1

conclusion 671:21680:12 692:7,11705:25 706:5,23707:7 725:24726:15 730:24761:9 774:9,16

conclusions 643:17652:8 690:9,16691:5,7 694:25699:13,21 704:12728:14 774:18783:9,10

conditional 602:21602:23 604:1,20605:2,4,18,19733:17,21 796:17796:20 797:3,15

conditioned 796:18conditions 733:2

771:6,9,11 773:3788:10 797:4,5

conducive 705:16conduct 796:5conducted 756:21

778:21 780:20conducting 568:19

762:5 795:20conference 780:19confidence 788:6confident 715:9

719:10 787:14confidentiality

741:8,9configuration

714:3confirm 805:1conform 591:17

592:4,11 597:13598:16 599:3728:20,25 729:22731:2 748:10

conformance602:21,24 604:1,3605:2,18,19606:13 607:5,6609:4,25 610:10732:24 733:4,17733:21 747:4,13747:14 749:10763:4,14,14 777:1796:8,14,17,18,20797:3,9,15

conformed 597:21601:16 603:7

conforming 605:9Conformity 729:17confused 730:6confusion 597:6connection 698:6

794:5Conservation

727:15consider 566:18,20

566:24 567:1,3664:16 681:14692:8 705:24712:1 720:2 774:5775:17 786:22795:23

considerably 625:9625:11

consideration618:12,13 690:3707:5 731:4755:14 776:20794:10

considerations681:22,25 756:1

considered 708:18708:23 709:11757:21 804:2805:2

considering 577:13751:17 754:15

considers 708:25consist 608:23consisted 584:1consistent 590:11

602:19 686:13,24688:3,16 689:11689:12 704:18

consistently 678:8consists 622:14consonant 651:17constant 575:19,19constituents 664:10constitutes 660:12constructed 618:20

619:23 798:2,11798:21

construction 617:2617:7 622:1804:19

consulted 779:13consulting 741:6contact 591:5,8,11

708:1contacted 742:7contain 626:12contained 574:15

670:7 756:18contains 660:20contaminants

758:17 788:11contaminated

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788:18 789:3,25790:22 793:9794:1

contemplation755:13



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Page 829

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Page 830

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Page 831

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Page 832

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Page 833

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find 585:15 590:9590:15 665:4710:21 747:1750:19 751:3

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finding 587:25588:19,20 592:4597:20 598:15644:13,14,20645:7,12 646:18646:21 647:3,4,15648:24 650:9,11650:22 666:5680:3 742:13744:15 755:25812:11

findings 592:18595:23 611:14,16641:20 643:17646:15 647:6648:16 649:2,2650:18 651:16,17664:14 702:8706:7 736:2793:20

fine 607:8 703:16713:9 757:5 759:6818:13

finger 803:5finish 695:19,21finished 699:20

802:9firm 614:25 617:8

722:6first 564:5 571:24

573:22 574:10,20607:2,4,14,16609:2,23 610:25614:24 615:6635:1 636:2 639:5639:15 645:6647:25 649:12652:7 654:12665:6 668:17

674:15 705:6,9712:12 714:13717:7 725:25730:2 741:1,15751:25 752:17754:13 763:10764:16 786:11,12786:12 794:7802:23 805:19807:10 813:25

fit 767:5five 608:24 618:3,9

621:23 623:5,10624:21 625:2629:18 654:9,10654:15,19 659:20701:13 723:21,25765:5,12 768:5801:6,9

five-file 702:1five-mile 615:24

617:12,13,17,20617:22 618:11,16624:13,16 627:6630:10,12,14647:17 653:25702:24 721:17722:14,15 724:20724:22 752:10764:21,24 765:3804:22,25

flagged 810:8,9flange 810:13flip 668:3 730:20flipping 686:7floating 662:6focus 578:22fold 764:15folks 582:10 767:4

779:10follow 645:8,10

655:17 690:4714:17 785:20

followed 689:14

777:16following 562:17

575:14 602:17610:10 652:12663:24 673:25697:13 732:23779:15

follows 564:5 653:3699:9

follow-up 695:17696:14 719:3817:1

force 782:12forced 768:1forces 762:9foregoing 610:9foremost 712:12forget 712:1 734:2forgot 694:9form 711:1 773:8formation 767:19formed 587:20

588:25 589:7660:8 670:5765:12

former 679:4formerly 679:12forming 663:18formula 724:8forward 610:15

614:24 615:5630:19 649:8658:18

forward-looking638:3

found 597:15 599:4606:23 642:12,17646:6 728:18,19731:1 747:10776:25 787:12,21788:10 795:22796:14 818:4

foundation 600:3four 606:15,17

608:24 723:16751:18

fourplex 619:9fourth 807:3frame 586:20

587:21 622:5,7629:3 769:5

frankly 600:25704:3 762:18774:7 780:7796:18

Friday 820:7,9Friedman 707:12

707:14 710:12711:7,12 712:3,19714:8 715:11716:8,13,17718:21 719:4721:24 722:4,5,21722:22 723:7726:6,19 727:6,9727:12,18,25730:8 732:3733:22 734:1745:23 746:5774:12 811:13,14

fringe 647:5,15front 699:15

726:23 727:13729:8 730:21737:19 746:20755:9 757:16

frontage 682:20fronts 815:8fruitful 604:4fully 607:19 785:14fundamental 567:7

646:14further 571:2

587:7 615:11,11615:19 648:5651:14 668:16669:14 676:19699:9 745:14



Page 834

765:9 772:25818:22

future 591:17598:17 613:10615:16 631:15690:1 705:14732:17 751:22

FYI 808:1

Gg 563:1 658:22gas 587:8 788:20

810:10gather 748:18gathering 680:13gears 755:1Gee 801:24general 641:11

703:19 744:20745:1 755:21758:22 768:8781:17

generalize 649:17generally 573:18

578:18 579:8581:23 641:6651:17 702:22703:21 704:2717:7 720:21740:12 752:11756:23 757:9758:13 760:20770:23 775:5779:23 780:1782:20 800:20809:22

generate 585:14generated 800:7geologist 819:21getting 642:10

667:13 681:18699:25 710:20,23712:20 715:9739:22 746:5,11

779:10GG-3 684:12,21Giles 682:20 683:4

693:5 772:20,25815:8

gist 639:18 744:1give 576:9 606:20

606:23 607:15608:22 614:21,22659:4 678:25727:7,11 736:4737:24 741:1777:9

given 601:7 607:9639:11 670:24719:8 721:3

gives 599:24723:12 801:7

giving 697:12glance 747:2go 597:2 600:4,5,18

608:9 615:11,12615:20 616:11621:6 643:2,3646:19 647:16,18647:21 651:1,8,11651:12 664:7671:25 672:17,23680:15 681:7685:18 690:9691:11,18,22695:9 696:6698:15,21 700:4702:5,13 715:6719:13 722:5728:13 737:25742:25 743:14747:16 754:5766:15,24 768:11770:11 776:4784:23 803:20

goals 704:18728:20

goes 704:5 735:25

going 565:6 572:12572:17 573:24578:10 585:10,23588:6 589:5593:14,15,20,20594:2,10,15,22595:8 596:21598:3,10 606:21607:22 611:14,24615:7 624:7631:19 634:18635:4,6,8 637:1648:15 654:21659:17 663:20667:10 673:4674:4 679:9 680:7681:19 688:18691:18,20,21692:21 693:2,4,9693:11,12,18694:4 695:13,25696:1,6,12 698:8698:12,20 704:11714:8,10 715:15723:15 724:1,2725:2 734:14737:7,20 743:7,11745:24 746:5750:23 761:17,20766:12 777:10,10777:22,25 778:19782:25 783:1785:15 793:17796:15 801:2805:18,21 811:9811:21 816:17819:18,20,23820:8,9

Golder 571:6,10golf 798:8,11good 564:8 657:3

659:3 666:12,13701:1,24 722:16734:10 744:24

774:24 776:10781:7 788:1 789:6789:6 812:14815:6,13 816:16820:9

Good-bye 742:5gotten 603:25

605:1 656:4 785:3812:15

government 687:9687:19 735:13

Governments731:8

grafted 693:20grain 802:7granted 605:4

627:18 694:20724:22 728:22768:11 769:16

gray 571:20 623:22812:18

great 649:19 685:5734:11 803:21

greater 649:16666:2,5,6 702:11

grew 629:2 630:3630:24 744:3

gross 752:9ground 565:22

621:17 627:8662:6 765:17

grounds 726:3groundwater

567:22 789:2,3,18789:19,23 790:1792:9 793:9 794:1

grow 620:5,9633:20 647:5

growing 628:16,20growth 586:6 614:8

614:11,14,24615:1,2,23 617:25618:5,9 628:2630:11 631:3,10

636:6 637:6,18641:4 643:25644:5,7,10,21645:1,7,8,10,21645:22,25 646:2,8646:10,24 648:10648:20 649:7,13650:2,10,15,17,18650:20,23 651:2651:15,18,22,24659:20 665:16666:2,5,6,10,14666:20,22 667:1,2667:4,6,9,16,18667:23 668:19,22668:22 686:11,13687:25 688:11,14688:16 700:12,14700:15,16,18,22700:23 702:17,21703:11 704:17,20705:15 706:22709:10,12,13716:18 721:15722:7,13,14,15,17722:23 724:2,20725:2,17 733:3,6751:17 752:7,9,12753:23,25 754:15754:17,25 765:3,5765:10,13 768:15768:17 782:4801:9 809:4,22

guess 567:8,11570:17 575:17,19577:24 580:21582:2,21 585:1590:8,21 599:17600:25 618:18627:13 635:21647:23 649:1652:7 658:12669:23 671:22678:25 679:6,11



Page 835

681:7 688:1 698:4706:2 719:22721:22 727:10729:3,5 735:18739:22 744:16745:1,13 752:17752:22 753:10757:5 766:17775:21 784:12787:19 788:7,25799:22 808:20817:4 818:21

guidance 782:12,15guys 746:11 820:11

Hh 658:23 659:5,18

661:21 663:14713:11 714:6785:21 786:2

half 694:16 720:5,5ham 734:8hand 627:3 688:9

706:8 771:3Hang 716:16

766:15happen 650:4,15

651:7 655:22667:11 697:11724:6

happened 644:8,10648:10,20 651:22679:15 742:16745:20 747:6768:3 779:5

happening 578:16650:5

happens 678:5happy 594:19

603:9 648:9702:13 714:12,19

hard 586:22 627:25631:14 647:24648:8 654:2,12

655:1 734:24737:7

Harris 565:11771:14,23 772:1772:18,19,22778:14

hasten 658:14hatched 714:24hate 752:23 815:9hazardous 568:11

568:15,18 791:11791:22 792:14,22792:25 793:5,8,25794:5,20 795:18

head 583:21 593:7614:21 616:11759:22 772:10801:3 813:15815:25

header 610:24heading 757:21

758:1,22health 661:4,24

662:3,17,22 729:7786:5,18 789:12

hear 563:15,18735:2 772:8811:23 812:1

heard 568:25 581:5582:10,12,23620:15 661:9,11675:14,18 745:3,4756:12 762:9

hearing 562:10,14562:16 563:6573:13 580:20581:1 582:13592:24 593:2,6595:4,21 600:22604:11 627:15649:1 658:17666:19 675:16677:11 734:24755:16 776:4

819:16hearings 562:2,15

568:24 581:6heart 660:15height 696:19,20

743:15 775:25776:3,4,6,8,13,21808:3

Hello 564:9 802:15802:16

help 601:2 641:23641:24 642:1,5685:12 727:14766:11

helpful 614:2780:16

helps 717:13 719:1791:17

Heritage 805:23806:10

HGAC 731:3735:14

Hi 569:17 657:5high 743:6higher 697:1,5

778:5highest 607:8

695:10,11highlighted 712:10Highway 651:14

667:12 703:20hill 682:21 683:10

777:23,24historic 608:12

643:25 645:8,10646:11,24 647:1650:17,23,25651:2,18 710:4711:14,23 738:5739:2

historical 649:7689:22

historically 700:8history 573:17

574:1,5,5,8,15578:15 579:10,11579:22 756:20757:7,15 760:22760:25 799:13,16799:20 817:4

hold 575:17,18667:23

home 637:21 638:9638:18 639:4,6,22640:1,4 721:24

homes 608:12618:20 638:8,9,12638:16 639:13,13639:14,20 706:12718:13 738:4765:18 767:2772:4 807:22

honestly 694:24705:9 729:2803:10 813:14815:4,25

Honor 563:9,19564:1 569:12593:10 595:2596:17,22 612:12616:10 643:1645:3 656:3671:14 688:19,25690:24 691:15698:13 699:5726:19 727:3734:25 745:18761:17 774:12783:24 784:3794:6,11 795:9797:7 805:18815:7 818:24

hope 741:11hopefully 757:18hoping 600:16

656:8hopping 635:25hot 694:8

hour 658:4 665:25698:9,20 784:1

hourly 657:23658:3

hours 658:12 698:8812:15

house 685:16801:24

household 621:3,5630:13 722:7,23767:18

households 618:22618:23 619:19627:2,4 630:1,4721:19 765:12766:7,18

houses 654:18housing 617:2,7

619:22 620:2,3621:17 622:1626:13,13 627:9636:13 637:14638:4,7 680:7

human 661:4,24662:3,17,22 786:5786:18

humble 649:10733:13

hundreds 583:22584:12

hungry 770:11hurts 733:8hypothetical 669:7

673:14 675:6694:23 721:12755:19 774:20794:7 795:9

hypothetically575:24 576:1,5,11576:18 577:2,5,8577:9,15,19,20578:1,1,4,9583:22 584:12,15668:14,20 669:11



Page 836

792:8,20hypotheticals

673:9

Iidentical 646:7identified 690:5

713:11 759:11785:16,20

identifies 786:2794:20

identifying 746:2II 758:1,23imagine 658:17immediately

574:24impact 566:21

583:23 637:18659:15 662:3,16662:21 663:22681:4,8 696:25697:8 718:7 721:8725:5 754:24785:24 786:5,13786:17 790:11

impacted 584:13789:12,18

impairment 810:15impairments 608:5

736:23 737:8implication 760:21implies 807:16imply 810:18importance 596:10

596:20 717:17734:22 735:7,10735:18 760:12

important 589:3590:14 592:18610:20,22 615:14707:22 712:3721:1 734:21738:23 774:9782:11 786:21

791:4improvement

647:6improvements

646:23 647:8682:7,19 683:8816:9

inaccurate 603:14inactive 692:14

695:3,4inartfully 782:7inches 715:8inch-and-a-half

715:3incident 588:8

745:4 758:10759:1,24

include 611:9659:17 733:23788:16 803:5,11

included 570:13,14574:2,8 631:23638:11 673:23702:16 731:14733:23 798:11

includes 737:11including 720:23

733:25 752:6782:16

incompatibility656:18 666:16680:4 744:15

incompatible576:21 577:6,12577:18,22 578:7578:11 653:20,25654:14,20 655:11655:21 667:5732:18 740:18

inconsistency595:17 598:5

inconsistent 595:11596:9

incorporated

785:13,17incorrect 611:14

611:16 736:2,2incorrectly 585:25

748:6 749:17increase 586:10

636:21 637:1696:16 718:6721:8,25 724:15725:3,9,12 751:24776:20

increased 629:5,10629:18,25 725:2753:23

increasingly649:14 700:25

indented 574:17,20575:3 736:10,20

independent688:13

indicate 564:17574:16 586:7626:16

indicated 624:4626:7,10 641:11685:22 717:4771:20 773:19775:8

indicates 771:7indicating 594:14

594:15 665:14726:1 743:24767:2 775:5787:22

indication 713:13indications 636:25

637:3indicator 631:17

666:13 703:10individual 687:9,11

687:17,23 780:20individuals 687:7

780:7,15indulge 817:17

indulgent 764:4industrial 568:3,8

575:7,10 587:14635:15 660:21,23661:3 662:3,6,12662:18,20,21663:4,6,17 664:6664:10,11,12,13700:7,8,16 701:6701:8,16,23 769:1769:6,11,13,17

inexhaustively707:9

influence 637:9influential 719:25

732:21information 619:24

622:8,12 640:23641:15 659:14660:5,17 670:6,14671:16 673:23702:15 763:24787:6,12,22 788:3803:18

infrastructure703:18,23 704:8754:20

inhibit 754:17,19inhibits 754:20initially 648:23initials 642:15

794:17Initiative 782:4

809:4input 569:1 781:14

781:16inquire 582:20inquiry 602:9inside 803:13insights 605:6installation 683:9installed 682:19

683:8,10instance 570:20

577:1,4 586:5594:4 619:18647:16 676:24741:15 746:25817:11

instances 714:20739:12

institution 687:11687:19

insufficient 754:21754:22,22,23,23

integral 710:22711:8,16

intensify 710:25interacted 780:19interest 579:25

597:15,22,25599:5 632:23

interesting 598:1744:2 754:12

interfere 758:17intermediate

682:25 683:6interpret 783:8interpretation

686:15interpreting

764:10interrupt 794:4interview 569:9

580:14interviewed 569:1interviewing

811:10interviews 780:15

780:21intrigued 752:5introduced 756:20inventory 624:4

675:12 765:16766:3,8 768:2,5768:21 801:1,8,16801:17,22

inverse 667:22



Page 837

investigate 587:22investigated 602:3

602:13 603:19,24investigation 603:5

604:5,6 674:22675:5,22

invoices 658:9,13involved 667:21

742:22 743:4in-flows 694:1Irrelevant 612:1issue 656:19 660:16

680:8 718:11720:7,9,14 745:2

issued 592:15602:21 605:19626:19 641:21643:9,13

issues 564:14565:16 566:24567:3,7,9,15,22579:2 586:21589:21 590:2611:15 660:16671:4 677:20696:13 720:10,12788:9 810:7

item 697:17 699:20699:23 700:4704:14 757:20759:6,11 784:8

items 757:23771:10 775:16

IV 565:11 568:13I.B 785:2,9,10i.e 738:13

JJ 819:17January 591:21

592:25 593:3736:13

jeopardizing740:23

job 815:6jobs 702:18,20John 563:10,14

564:4 699:8770:17

joking 585:12637:8

jokingly 572:11judge 562:17 563:4

563:8,12,17,25569:18 579:17584:9,17 588:9,13589:6,9 593:11594:1,7,25 595:14595:20 596:3,6,11596:15,18,23,24597:2,8,18 598:3598:9,18,22 599:6600:2,7,13,17601:9 602:10,16603:2 606:6,10607:23 609:10,16611:20 612:1,11612:18 616:13,18618:3 625:16627:23,25 628:9629:11,19,21,24631:19 635:8639:25 640:3642:2,11,23 643:3644:9,12,18,23,25645:4,19,24 646:4646:19 648:15650:11 652:3655:13,16,19656:23 657:8661:8,11 662:8,23663:5 664:2,5665:11 669:9671:12,15,18672:25 673:16675:2,9 680:1683:25 684:16686:2,23 687:4,24

688:20 689:2,10689:15,17 690:20690:22 691:2,5,12691:20 692:21695:21 698:8,11698:15,19 699:4699:17 707:6,8,12710:9 711:5,20712:6 714:5,10,21714:25 715:5,23715:25 716:7,12718:19 719:2721:23 722:2,20723:6 726:5,21727:4,7,23 730:5733:20 734:3735:6 736:6,12,15736:18,21 737:16737:20 738:21739:9,14,16 741:5741:12 744:11,19744:23 745:16,21746:4,8,10,14749:4,9,12 761:19763:6 767:12,15768:23 770:3,5774:14 775:18,23778:10 779:10781:18,20 783:25784:5,14,16,18,21790:6,9 794:8795:2,4,10 797:11799:6 802:12,19803:22 804:3,8,12805:9,11 806:2807:4 808:18809:17 811:13,15811:25 813:3,18813:23 814:18,22815:12 816:25818:8,18 819:2,4819:9,12,14,18,22820:1,4,12

Judge's 685:13

July 624:5 749:20749:25 785:11

jump 816:9jumped 632:15

633:25jurisdiction 629:1

782:17 783:22809:4

jurisdictions782:18

JW 642:14JWs 642:10,13JW-3 704:24JW-5 606:6 642:7,9

642:17,21 731:20734:17 735:19

Kkeep 629:22 631:19

693:9key 632:6Khan 753:16 812:7

812:8kicked 791:8kind 574:16 585:12

594:16 610:2622:16 645:19648:8 655:17656:10 666:4691:12 723:10735:25 742:10,14743:2,22,24 745:1758:19 763:16765:19 791:8796:13 814:5816:7

kinds 567:14knew 592:6 793:17know 563:18

565:23 567:19573:22 576:7578:20,25 582:2,6585:12 586:6587:23 592:13

600:15 604:5609:16 611:11615:21 619:8620:20 629:12632:23 636:6637:23 638:20,22640:4 653:22654:25 659:11667:7 670:24677:2,4 679:10,17682:2,8,24 683:5688:21 689:2,6694:3,5 695:25696:17,17,22,24697:15 701:3702:14 703:1,9706:25 708:13,15709:1,3,3 716:4718:10,12,14720:3,4,12 721:2721:11 723:23,25725:22 729:2,3,4730:12,16 731:16734:6,6 737:4742:8,14 743:2,13743:18,23 744:4745:5 747:7 750:2750:8 752:18753:6,10 754:4,20755:6 757:18759:20,24 760:24763:13,17 771:25772:4 774:5777:22,22,23779:13 780:18781:7,15 785:16785:18 794:4,17794:17 795:6797:18 799:1,24800:6,9 802:3803:10,13 804:3,4810:5,14,21 811:1811:10 812:14813:15 814:10



Page 838

815:12 816:10,14818:1 819:10

knowing 589:3knowledgable

762:11knowledge 565:9

567:23 613:9,11660:14 670:12674:7 703:22709:8,18 737:15755:5 769:9782:13 797:13798:6 799:2 817:2817:6

known 571:18575:8 659:23772:2 773:24

Llabeled 626:5 685:7

685:19 712:24716:17 736:9771:10,23

labeling 626:6lack 666:9,14 667:2

667:6,18 668:1,6668:7 742:10754:16 762:7

land 564:13,20565:2,4,15 566:18567:4,7,18,19568:7,10,19570:14 572:2,5,8572:11,15 574:9575:22 576:4,14576:21 577:7,18577:22 578:7,12578:17 579:12581:22 582:1,5583:23,25 584:13585:13 587:3589:4 590:16,19591:18,20 592:10592:19 598:17

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landfill 565:10,24566:2,19 567:10567:11,14,24569:8 570:7,7571:3,17,22 572:6573:13 574:24575:1,4,9,16576:1,11 577:11577:16,21 578:2,5578:6,10 580:9581:21 585:10,14585:24 586:1,19587:4,6 588:22590:10,15 591:13591:14 592:4595:24 597:21602:4,14 603:20608:6 611:1,5,12612:21 613:3,6,9613:12,14 614:8615:17 617:8,11623:21,23 627:16627:24 628:13633:1,5,16,21636:2,23 638:22640:19 644:3652:21,25 653:4653:12,15 654:19

654:20 655:21,25656:4,13,17662:12,13 665:18666:25 667:19668:11,16,18,19669:1,4,5 672:21673:2,3 676:6,17676:21 677:13,14678:3 679:4,5,12679:24 680:8681:21 683:14684:3 686:12688:7,14 689:23692:13,14 693:21694:2,13 695:1,3695:4,8,12,15,16696:9,10 700:6705:22,22 709:17710:2,24 711:15712:19 726:9728:7 729:23731:2 736:25738:24 741:16,17742:9,14,23 743:6744:10 750:25751:7,15 755:20756:9,9 768:11773:7,9,24,25774:17 775:19776:1,16,21778:14,20,23779:1,3,14,18,24780:3,25 783:6,6788:20,21 789:17798:3,12,18 800:7810:16 812:22,23813:2 815:7 816:2816:3,12 817:19818:5

landfilling 652:21653:5

landfills 586:2587:2,18 588:1,5611:8 616:4

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Landfill's 573:17landowner 789:24

790:14landowners 608:4

736:10,22 737:3,5780:21 793:9

landscape 682:3,5682:19

language 786:7large 587:14 687:6

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lavender 571:16623:19

law 562:17 643:17



Page 839

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let's 567:21 570:22578:1 592:17601:1 605:15607:22 614:3615:8 616:13621:21 642:23646:19 648:22649:4 671:25680:4 691:11693:17 698:19700:4 704:20706:22 713:8720:19 724:24728:13 741:12742:20 743:25746:18,19 747:16767:2 770:11771:4 779:11781:8 789:8791:25 792:3,11792:12,20 793:4794:8 803:20813:25 815:21

level 576:19 636:15696:18,22 697:1,4697:6,15 776:14776:14,17

Lewisville 741:19744:3,17 812:22812:23 813:2816:7

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lines 665:13 775:13779:4

list 609:2,22 610:8699:20 703:4,14704:11 794:19,25795:11,16,18,22810:6

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location 661:2677:21 710:7713:15

locations 725:17738:13

logic 689:15long 570:24,25

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longer 593:17612:17 679:5793:15

look 567:4,8 569:18578:14 585:1,5587:3,19 593:23594:8 595:1,7607:22 614:3615:5,8 621:6623:13 631:22634:14 635:7639:20 642:9643:6 647:16,16650:25 680:1684:16,23 723:19723:20 758:19760:7 763:10765:16 767:18,22785:2,25 803:6804:7 805:24

looked 573:9 618:2641:23 717:23750:9 755:12757:18 758:21

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looks 636:20 666:2685:19 713:7,23714:11 716:21772:12 806:17

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Page 840

781:13,14 793:22814:4

lots 621:21,22622:17,20,22623:1,2,5 627:7765:17,17,23767:1,2,6 800:18800:22 801:2,16801:17,22,23,23802:5,9

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Management's578:14 579:22591:16 599:20606:1 740:2,4817:12

mandated 580:20756:24

manner 576:2,12590:10,16

Mansion 569:8,9708:5,9 713:12,13

713:18,21,25714:2,15 715:10715:17 716:3808:8

map 570:18 571:11625:1,4,10,20647:17 684:25713:1 768:18770:11 804:5,8,9804:14

mapping 571:4,5maps 570:13,14,16

571:9 690:16782:15

mark 718:14 727:2727:5,11

marked 602:25714:6 726:22734:17 735:19

marker 718:17,20market 614:25

617:9 637:13638:1 717:9721:14 722:6790:18,21

material 774:7816:5

materials 587:14785:11,13

math 715:8 717:20768:1

matter 562:14566:17 569:25578:20 593:17611:19 628:25638:4 695:6,7698:5 771:3779:19 780:8781:22

matters 656:5,6maximum 743:14

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575:2 576:24

583:6 588:17589:13 592:1609:7 613:24614:9 616:25623:14 630:7631:25 640:7643:23 665:3676:4 700:20707:3 805:4 810:4

McInturff 681:20McInturff's 573:9mean 573:5 585:3

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means 619:1 648:2748:18 782:8805:13

meant 582:14685:15 698:3762:24,25

measure 655:7,8,8713:25 715:1716:5 740:9

measured 740:3,3740:7,8

measurement719:22,24,24724:7

measures 579:1,3,5mechanism 773:21medical 568:12,16meet 655:6 801:20meeting 580:21,22

674:13,18meetings 580:15,18

581:6,8,12,18674:12 675:14,19

Meitra 657:3meltdown 637:4memory 804:11mention 611:7

725:22mentioned 589:10

734:20 736:1738:12 778:2791:2 812:4,21,24813:11

mere 679:22merely 671:20MERITS 562:10met 780:11metropolitan

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miles 618:4,10621:23 623:5,10624:22 625:2629:18 639:1,3



Page 841

654:9,10,15,19659:20 701:13723:22 724:3765:5,12 768:5801:6,9

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mutually 808:25

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569:7,17,23 570:2657:3 693:22709:3 745:5

names 566:3 626:8741:1

Natural 727:14nature 615:21

766:6near 569:8 578:5

580:8 668:11744:3 806:17807:11

nearby 577:3,6,11680:20 681:9,17709:17 742:2788:16 789:17791:15

nearest 618:5,7712:14

nearly 592:22642:14

necessarily 584:20585:4 646:7 668:3668:4,22 680:11706:17 774:9

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600:18 616:10645:5 648:17727:7 746:2750:16,25 754:9785:24 792:12

needs 660:5 663:6663:7 727:5753:17,18,22,24812:5,5

negative 754:24neighbor 777:21

781:8neighborhood

569:4 742:10743:25 778:14814:6

neighborhoods741:24 743:6

neighboring577:21,24 578:11672:6,8 677:13807:12

neighbors 568:21569:2 580:8,14,16581:5 582:9726:24 732:16780:10 788:22,24789:5,8 817:6

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nevertheless710:19

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night 577:17NNC 726:22,24

746:9,19NNC-1 726:25

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580:13 681:21693:7

nonconformance591:19 592:15599:21 600:10606:24 777:3

nonexistence 681:1nonresidential

700:16nonresponsive

579:16 584:8688:19

noon 698:9normal 758:17north 591:13 695:4

735:15 771:14775:9

northeast 644:3646:3 726:24780:9

northerly 713:8northwest 713:5,6

713:8northwesterly

713:15note 614:7 638:6

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noted 710:21751:12 767:14

notes 574:18



Page 842

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656:10 687:13748:12

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nuggets 752:6nuisance 576:2,13

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nuisances 578:16673:10,12,15,18674:1,7,23,23675:6 681:8732:15 755:18,24800:7

number 566:1581:6 583:19584:24 585:1586:14 587:17612:5 613:21620:24,25 621:2624:8 625:21631:7 632:14633:12,16 637:23638:20 647:18652:25 654:12,18654:22 655:1,3,4655:10 667:7674:19 676:9718:12 721:4,19724:21 746:2,2752:5 759:19764:20 767:24,25768:6,24 769:1,1773:23 780:6

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Numeral 758:1,23numerical 660:10

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608:12 738:4

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593:14,24 594:23611:24 688:18734:25 761:18794:4 816:17

objection 579:16584:8,14 597:1,17597:23 599:23602:6 612:9,22625:11 627:20631:16 635:6644:16 646:13648:13 652:1654:4 655:12661:6 662:5 663:2671:9 674:25687:1,3,5 711:1711:10 712:4718:16,24 722:18733:18 735:3737:14 739:6746:4,7 763:5767:11 770:2

774:12 778:9779:7 790:3 795:1795:3,4 797:2809:7 813:1816:23 818:6,15

objections 563:21563:22 593:22

objective 731:3objectives 728:21objects 807:17obligations 741:8observed 674:8

707:23obtain 636:5obtained 571:4obvious 587:18

620:16 719:9752:24

obviously 679:5689:11 692:11752:24

occur 624:11 690:7692:22 703:11724:2 777:10,11803:3 809:22

occurred 572:13652:22 790:19

occurring 614:8649:15,16 666:6694:21 752:12

occurs 606:19607:12 608:2,3768:21

odor 566:24 576:20578:19 584:7587:17 674:4758:15,16 759:2759:12,16 760:1,4761:7,14,15,15,24810:3,6,14,18,21810:23,24

odors 576:19 577:2577:4 586:18,23587:1,11,13,15,22

587:25 588:19,21681:4

offer 603:10 745:23817:9

offered 563:20589:8 594:24602:25 605:18745:21 780:8817:5,10

offhand 810:11office 562:2,15

701:11,21offices 675:22off-site 817:15off-the-cuff 724:7oh 567:20 594:7

603:15 609:14628:23 629:21642:1,3 643:5665:12 679:25703:8 746:13748:25 750:24752:17 762:21767:24 772:24775:7 784:19799:22 809:15812:2

oil 587:8okay 563:16,25

565:12 566:11570:4,24 571:19571:24 572:25579:7,19 580:4594:9,16 595:18595:20,25 596:6596:23 597:8598:10,18,22601:2,25 602:10603:2,24 605:16606:4,5,11 607:1607:9 608:1609:22 614:6,15616:18 617:4,15618:19 620:12

621:8,18 624:13624:14 628:6,12629:21 630:8,9631:10 632:3635:3 638:14,17639:2 640:17641:9 643:24644:2,6,24 645:17649:4,6 651:7652:24 655:23656:8,12,14,23658:2,20 659:7,12659:12 661:20664:4 665:1,22669:21 670:1,18673:8 674:13677:18,23 678:10678:16,20 683:11685:5 686:6690:13 691:11,24692:17 694:7,10695:23 697:14,17697:25 699:4,14699:22 700:5,24703:22 704:11,15704:22 705:4,10705:24 706:4,24709:1 712:23,25714:12,25 715:5715:24 716:2,7723:16 724:14,17724:19 725:1728:15,23 729:6,9729:23 730:20,22732:10,20 734:15734:16 735:8,19735:25 736:15,21737:10 738:1,9739:21 740:11,16740:20,25 742:4742:25 744:2,25745:8,12 747:24749:3 750:12,14755:8 757:25



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Page 845

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Page 846

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Page 847

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Page 848

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585:15 676:12737:15 747:24762:17,22 763:1763:16 769:25775:15 806:7,12807:6 809:7

words 575:20576:16 607:20619:8 632:25640:22 668:5,24680:6 753:4,23761:13 769:22781:24 787:21

802:1work 585:8 682:22

683:2 742:3752:20 759:7760:13 781:13814:5

worked 564:18613:2 616:3654:23 669:10812:22,23

working 571:25573:19 579:13657:16 673:4781:8

Worrall 563:10,14563:15 564:4,8,12569:11,17,23589:10 593:12595:21 600:20603:4 616:20640:6 652:4 657:3663:12 677:10686:6 688:1689:21 692:16699:8,12 707:15709:19 711:8716:8 719:4726:23 727:12746:20 752:16755:10 770:11771:25 784:8790:14 794:14,24795:14 799:4,9802:15 806:6807:19 810:17819:4

Worrall's 563:19worried 816:5worth 741:20

753:17 759:17wouldn't 586:2

588:23 639:11666:12 680:5689:15 690:4

742:19 743:19801:13 814:11819:2

Wrath 753:16812:7,8

written 629:13674:14 687:14

wrong 629:13708:20 739:17743:9 792:2799:23

W-o-r-r-a-l-l563:15

Yyard 817:8yeah 585:21 594:25

600:25 601:22610:22 635:25646:19,19 648:15661:8 669:9671:12 672:25685:5 690:22693:17 710:10714:8 715:1722:20 727:4,9728:2 743:16744:5 745:5748:18 760:8,20762:21 764:14766:21 775:23788:2,19 794:9798:24 799:12800:5 809:19

year 568:25 580:24592:25 593:3614:18 620:6,9630:18 636:13639:9 647:10675:16 694:13700:22 708:10742:6 754:6766:18 801:11

years 579:13 615:8

616:5 618:21644:5 649:11650:8 653:1,6,12657:14 669:11679:13 700:12,18718:4,7 729:5751:15,19 760:3,6768:5,12,17 778:1800:4,8 811:2

yellow 622:15,18623:25 624:10,19624:21 625:9626:8,15 775:13

yesterday 568:2,3

Zzone 608:11 611:9

649:21,23 738:3,7781:25 782:9,20782:22,23,25783:7,14,15,16,20783:21 808:11,15809:2,12,14

zones 611:10 782:6782:19 808:24

zoning 659:18688:14 782:10

$$149,000 639:4,22$149,997 638:16$20,000 658:8$200 658:4$244,000 759:14,21$6,000 759:17,20

000018 767:23

11 562:10 563:2

574:23 607:4608:7 609:8,9,13624:5 627:10

643:2 652:14659:18 674:10683:4 691:24692:10 694:17,17699:2 716:10723:23 726:22732:11 736:8,9,17746:9,19 749:1,2749:8,9 755:7,9756:16 757:17764:6 773:9782:21 785:9806:12,16

1st 562:131,000 584:21 620:6

620:9 766:18801:11 802:4

1,082 767:41,183 724:91,447 724:121-5 702:6 703:51.4 754:31.7 715:81:00 698:141:30 698:23 699:310 607:18 609:10

609:20 615:8617:2 618:19621:11 644:4,22644:25 645:1646:1,1 650:8652:8 690:24691:2,4 699:17,18700:12,18 718:1720:6,17 723:12724:12 725:9,11729:5 748:21749:20,25 785:11

10,000 654:3,6724:21,23,25

10-year 629:210:11 616:1610:30 616:17100 584:17 616:5



Page 859

721:61136 593:131183 634:11 719:1512 730:21 751:1912:15 691:1612:20 698:2213 670:3,5 676:2

683:11 709:20738:17,21

130 651:14 667:12133 629:2 633:2014 643:16,19,201400 723:131447 719:1615 565:6,7 614:3,4

643:9 649:11702:6 720:6728:13 751:6

15th 562:1515-minute 616:14150 639:2416 614:17 628:3,4

628:10,11 642:20642:21 643:18,21728:12 729:3

17,000 801:317,963 621:20

623:5 767:5174 716:10,13179 690:1618 621:6,20 643:24

665:1,11,13669:14,18,18686:8 742:18766:25

18,000 767:2,218-year 767:919 638:11 671:251968 574:21 652:221970 575:10 636:21974 574:18 652:21

697:191975 574:111980 632:1,2 633:1

633:12 635:20,231980s 572:11982 575:41984 632:12 633:31988 633:8,131990 572:13,19

573:20 628:17630:21 633:19636:16 648:24649:5,6 650:9,15650:16 651:25686:18

1995 633:24 636:19643:10 644:21646:22 648:24

22 606:6 607:12,13

608:9 609:2652:20 674:11697:17 699:20738:1 748:20762:19 763:13764:1 784:23,24785:1,4,6 806:17

2-0 625:52.13 608:202.15 608:222.2 608:19 621:42.5 620:20,252.8 608:1820 564:14,21 565:6

565:7 619:18,19619:19 622:13625:5,19 768:18819:8

2000 619:25 628:17629:9,16,17630:13,18 751:19

2001 586:202002 586:20 588:12

674:5 749:20,25758:11 761:5,25785:12

2003 634:52004 572:17 580:4

589:11 636:20756:15

2005 591:212006 591:23 592:3

617:24 634:10635:5 716:21,22717:3 719:14724:9 736:13785:12

2006-0612-MSW562:7

2007 615:7 619:25771:6,12

2008 581:2 591:25592:16 604:16607:18 609:10,20624:5 625:6,21629:9,17 630:13631:4 638:16719:16 724:12748:21

2009 562:10,13563:2 618:21619:23 624:2647:13 699:2

2015 605:22 611:2611:6 612:8627:11,17,19677:19 678:2,9,23679:2 692:10,19692:20,22,23693:1 773:9,11,13774:1,17 796:15797:16,24 798:18

2016 694:10 695:8696:5 697:11

2017 614:18,20615:13 618:21619:23 622:23624:7,7,9 626:19627:3 631:6,11700:22 721:15

722:8,23 723:3724:21

202 802:242020 647:102025 754:621 616:21,22,23,25

621:25 669:15721:20 766:13

22 628:14 630:16630:21 646:6785:12

24 570:22 623:13625:16,17 676:3712:24

24,000 800:24249C 572:20 573:1

574:6 641:4,21676:16 714:2,16714:22 715:2817:4

249D 562:7 572:22684:6 731:15817:3

25 723:22 724:3740:15 768:5,12768:17

25,000 767:24800:18 801:8

250 724:1526 628:23,24

631:24 632:2634:14,25 635:1

27 632:11 683:12738:17,21,22

28 633:7 710:9751:6

29 633:15290 587:9 667:13

703:20 704:3725:19 772:23

33 608:14 699:23

759:23 764:5

3,438 619:3,203.6 729:1630 564:24 633:24

644:5 679:13738:18 740:15778:1

30-year 679:18779:23

300 562:15 628:9628:10

302 616:21 690:23691:2

305 684:7 685:2331 634:5 736:1332 634:14,25 635:1330.566(d) 728:19330.61 658:22

671:5 712:11330.61(g) 659:5

785:21330.61(h) 785:23

786:934 749:18346 632:4,15359 632:15360 633:10 634:1

730:12363.066 729:10,17

747:20363.066(a) 728:17

729:14 747:16366 729:1037 732:9

44 562:20 574:15

607:13 643:4,6717:23 757:25758:11 771:6,12

4:05 820:134:1 743:13,1440 653:6,12 721:8

723:2,1440,528 630:22



Page 860

404 562:1643 703:1445 642:21 643:6

698:14,15457 623:8

55 591:25 592:16

604:16 608:14642:11 659:18700:4 723:23728:12,16 731:23732:5,6 757:23758:5

50 579:1550,000 630:350,078 629:6500 659:2453,994 631:15600 723:18562 562:2057,000 654:1657,913 629:6 630:4582-08-2186 562:6

563:5

66 591:23 592:3

610:11 630:20665:13 709:22757:23 758:5,6759:1,16

60 724:1,3600 816:16300 618:24641 652:16655 634:1665 685:20

77 621:7,20 622:5

629:8,11,16,19630:2 636:8,10643:24 704:14

705:25 706:5,23707:7 767:1

7,835 629:2570 720:1570s 745:671 692:12 816:271-acre 652:14720 776:9740 695:13 776:1775 776:21750 634:678 630:3795 695:9 776:5

777:23,24

88 621:7 622:5 646:9

647:7 651:1665:13 686:8690:18,20,21,22731:23 732:5

8,000 801:4,58,778 623:118.4 717:4 724:9

725:9820 562:20

99 647:3,15 672:19,000 626:199,738 618:20

620:249:00 562:13 563:394,522 630:249700 627:2,4

723:21

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tjfaonline.com · HEARING ON THE MERITS SOAH DOCKET NO. 582-08-2186 TCEQ DOCKET NO. 2006-0612-MSW VOLUME 4 WEDNESDAY, APRIL 1, 2009 2 (Pages 563 to 566) Page 563 1 P R O C E E D I