Thumann, Larry R., Individually and d/b/a AAA Natural Recycling, Inc. v. Harris County, Texas and The State of Texas acting by and through the Texas Natural Resource Conservation Commission--Appeal from 280th District Court of Harris County

Affirmed and Opinion filed December 12, 2002

Affirmed and Opinion filed December 12, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-02-00307-CV

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LARRY R. THUMANN, Individually, and

d/b/a AAA NATURAL RECYCLING, Appellant

V.

HARRIS COUNTY, TEXAS and THE STATE OF TEXAS, acting by and through the TEXAS NATURAL RESOURCE CONSERVATION COMMISSION, Appellees

On Appeal from the 280th District Court

Harris County, Texas

Trial Court Cause No. 02-07697

O P I N I O N

Appellant, Larry R. Thumann, individually and d/b/a AAA Natural Recycling, Inc. ( AAA ), appeals from the trial court=s temporary injunction that prohibits AAA from accepting solid waste. On interlocutory appeal, AAA contends the injunction must be dissolved because (1) Chapter 330 of the Texas Administrative Code does not apply to AAA=s facility; (2) the evidence was legally and factually insufficient to support a temporary injunction against it; (3) the injunction was based on activities of another party; and (4) the balance of equities favors AAA=s continued collection of raw wood materials. We affirm.

AAA operates two businesses in Harris County: one at 20220 Morton Road in Katy, Texas ( Morton Road Facility ) and one at 5921 FM 1960 in Houston ( 1960 Facility ). AAA has operated these sites for approximately four years during which time it has collected large amounts of unprocessed wood, including tree limbs, branches, stumps, brush, and lumber scrap. To accept this waste, AAA receives a tipping fee that ranges between $3 and $4 per cubic yard of debris.

According to AAA, the wood is being recycled into mulch and fuel wood. However, Harris County and the State of Texas, acting by and through the Texas Natural Resource Conservation Commission ( Commission ), inspected the facilities on several occasions and determined that AAA recycled only a very small percentage of the wood; most of the wood dumped on the property remains unprocessed. Additionally, the wood piles have grown very large and AAA lacks an adequate water supply, creating a possible fire hazard.

The Commission determined that AAA was violating the Texas Solid Waste Disposal Act (chapter 361 of the Texas Health and Safety Code and chapter 30 of the Texas Administrative Code section 330.4(a)) because it stored, processed, or disposed of municipal solid waste without a permit. The Commission also concluded that AAA was violating Chapter 30 of Texas Administrative Code section 330.5(a) because its activity endangered human health and welfare, as well as the environment.

Based on those findings, Harris County filed an injunction and application for a temporary restraining order against AAA.[1] On February 14, 2002, the trial court granted Harris County=s request and prohibited AAA from accepting any additional waste. The trial court then heard evidence on the issue and on March 7, 2002 granted a temporary injunction against AAA.

The Temporary Injunction

The purpose of a temporary injunction order is to preserve the status quo pending a trial on the merits. Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993). The party requesting a temporary injunction must show (1) a viable cause of action; (2) a probable right to recovery; and (3) a probable, imminent, and irreparable injury in the interim. Id. The decision to grant or deny a temporary injunction lies in the sound discretion of the court, and the court=s grant or denial is subject to reversal only for a clear abuse of discretion. Id. at 58. The trial court abuses its discretion when it acts arbitrarily and unreasonably, without reference to guiding principles, or misapplies the law to the established facts of the case. Beaumont Bank v. Buller, 806 S.W.2d 223, 226 (Tex. 1991).

In reviewing the trial court=s decision, we draw all inferences from the evidence in a manner most favorable to the trial court=s judgment. Resolution Trust Corp. v. Chair King, Inc., 827 S.W.2d 546, 548 (Tex. App.CHouston [14th Dist.] 1992, no writ). This Court may not reverse for an abuse of discretion merely because it disagrees with the trial court=s decision, if that decision was within the trial court=s discretionary authority. Beaumont Bank, 806 S.W.2d at 226. Thus, this Court may not substitute its judgment for that of the trial court. Davis v. Huey, 571 S.W.2d 859, 861B62 (Tex. 1978). The burden of proof is on the litigants attacking the trial court=s action. Garcia Marroquin v. Nueces County Bail Bond Bd., 1 S.W.3d 366, 379 (Tex. App.CCorpus Christi 1999, no pet.).

Recyclable Material or Solid Waste?

In its first issue, AAA contends it deals with recyclable material, not solid waste. Because the permit required by Chapter 330 of the Texas Administrative Code is applicable only to facilities storing solid waste, AAA claims the trial court was not authorized to enjoin it from accepting additional deposits of raw wood. In fact, AAA argues that as a recycling business, its activities are regulated by Chapter 332 of the Texas Administrative Code, not Chapter 330.[2]

AAA first argues that municipal solid waste does not include raw wood, and thus it has no solid waste on its premises. Municipal solid waste is defined as Asolid waste resulting from or incidental to municipal, community, commercial, institutional, and recreational activities, including garbage, rubbish . . . and other solid waste other than industrial solid waste.@[3] 30 Tex. Admin. Code ' 330.2(77) (emphasis added). Rubbish is defined as nonputrescible solid waste (excluding ashes), consisting of both combustible and noncombustible waste materials. Combustible rubbish includes paper, rags, cartons, wood,
. . . 30 Tex. Admin. Code ' 330.2(122) (emphasis added). Thus, AAA=s raw wood is included within the definition of solid waste.

AAA also argues, however, that its raw wood is recyclable material because it regularly processes the material into mulch and fuel wood, and thus it falls under two exceptions to Chapter 330 which state, [r]ecyclable material is not solid waste, and recycling includes the composting process if the compost material is put to beneficial use. 30 Tex. Admin. Code ' 330.2(114) & (115). Thus, facilities are exempt from the permit requirement of Chapter 330 if they are used as a collection and processing point for only nonputrescible source-separated recyclable material. 30 Tex. Admin. Code ' 330.4(f)(1)(c). Putrescible waste includes organic waste, such as garbage, wastewater treatment plant sludge, and grease trap waste. 30 Tex. Admin. Code ' 330.2(109). Because wood is not listed as a putrescible waste, AAA contends it is, by definition, a collection and processing point for . . . recyclable material, and hence is exempt from the permit requirements imposed by Chapter 330.

AAA seems to suggest by its argument that because raw wood can be recycled, it is necessarily a recyclable material. However, a material is a recyclable material depending on how the material is treated. Recycling is a process in which discarded material is turned into a useful product. Certainly, wood may be recycled by composting. 30 Tex. Admin. Code ' 330.2(27), (115). And if wood is being recycled, it is not solid waste. 30 Tex. Admin. Code ' 330.2(114). In other words, the character of the raw wood stored on AAA=s property depends on whether it is actually being recycled or is merely being dumped. Here, Harris County presented evidence that little if any wood was being recycled by AAA.

The trial court heard evidence that AAA=s primary source of revenue came from tipping fees generated when wood is dumped on their site, not from revenue generated by the recycling of wood into mulch.[4] In fact, the amount of unprocessed wood at the Morton Road facility now ranges between 100,000 and 300,000 cubic yards of unprocessed wood. The 1960 site has between 100,000 and 125,000 cubic yards of unprocessed wood. Moreover, Harris County presented testimony that no more than 1 to 2 percent of the wood has been ground into mulch, and this grinding occurred only after AAA=s landlord and the Commission began investigating AAA=s operation. The Commission characterized AAA as a sham recycling operation.

One witness testified the wood is stacked so high in places that trucks are now driving across the top of the waste. On one site, AAA has pushed wood into a vast pit and is covering it with soil, showing no intent to recycle the material. For the recycling exemption to apply, AAA must be actively engaged in recycling, not just claim it intends to recycle the material. Furthermore, when Commission inspectors visited AAA=s facility, they noted that AAA had no grinder for turning raw wood into mulch. AAA subsequently obtained a used grinder for the 1960 facility, but rarely ground any wood.

Whether AAA is a sham recycling operation is a question of fact. The trial court considered the evidence and decided this question contrary to appellant=s position. Having resolved the fact issue in favor of Harris County, the trial court did not err in applying the permit requirement of Chapter 330 to appellant. AAA=s first issue is overruled.

Factual and Legal Insufficiency

In its second issue, AAA contends the evidence is legally and factually insufficient to support the trial court=s injunction. Specifically, AAA argues it was processing recyclable materials, not municipal solid waste, and thus was not required to get a permit under section 330.4(a). AAA also contends it failed to violate section 330.5(a) because it never put municipal solid waste into adjacent waters, created a nuisance, or endangered the environment.

The decision to grant or deny a temporary injunction lies in the sound discretion of the trial court, and the court=s grant or denial is subject to reversal only for a clear abuse of discretion. Walling, 863 S.W.2d at 58. Under an abuse of discretion standard, legal and factual sufficiency challenges are not independent reversible grounds of error, but are relevant factors in assessing whether the trial court abused its discretion. Beaumont Bank , N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). Thus, we will address whether the trial court abused its discretionary authority in ordering AAA to stop collecting solid waste. A trial court abuses its discretion when it acts without any guiding rules or principles. Id.

As discussed above, ample evidence was presented to the trial court showing AAA was not a recycling business. The Commission inspector visited AAA on several occasions from November 2001 to February 2002. The Morton Road Facility has two large stockpiles, one of which is primarily lumber and construction debris and the other primarily tree parts. Each stockpile measures between fifteen and twenty-five feet high and extends over several acres of land. Although the recycling process may require the material to decompose for periods of up to six months, only a minuscule amount of the raw wood has been ground up for decomposition.

While the Commission noted that the 1960 Facility has a grinder for recycling the raw wood into mulch, that grinder has rarely been used. In fact, Barry Golden, an operations manager for AAA, testified that the grinder was used only two days during his seven month employment. Furthermore, the first time the Commission saw any grinding at this location was on February 21, 2002, seven days after Harris County filed this lawsuit.

AAA also contends that Harris County failed to present any evidence showing AAA violated section 330.5(a), which forbids solid waste facility operations that cause (1) the discharge or imminent threat of discharge of municipal solid waste into or adjacent to the waters without specific permission from the commission; or (2) the creation and maintenance of a nuisance; or (3) the endangerment of the human health and welfare or the environment. 30 Tex. Admin. Code ' 330.5(a)(1B3).

Harris County offered ample evidence, however, of a section 330.5(a) violation. First, the Commission had previously cited AAA on two occasions for putting waste, such as tree parts, into a pond at the 1960 Facility. Harris County offered evidence that as unprocessed wood degrades, it can emit various contaminants such as hydrogen sulfide and ammonia that can then enter both surface and groundwater.

Additionally, Thomas Petty, fire and arson investigator with the Harris County Fire and Emergency Services Department, determined that both sites posed an unacceptable fire hazard because neither site had a sufficient water supply for fire suppression operations. Moreover, AAA had no fire prevention plan, and the unprocessed wood was too close to the property line. Petty admitted that AAA had purchased a pumper tanker truck, but he did not know if it could provide a sufficient supply of water to fight a fire if one occurred. Finally, although Petty had never seen fires at either location, the land owner of the Morton Road Facility testified that he had seen several fires on the site and had actually helped fight one fire that burned for at least two days.

We find, therefore, that the trial court did not abuse its discretion in granting the temporary injunction when, as in this case, the original petition alleges a violation or threat of violation of Chapter 330 of the Texas Administrative Code and the Commission (the party seeking the injunction) presented evidence tending to sustain the cause of action. RP & R, Inc. v. Territo, 32 S.W.3d 396, 400 (Tex. App.CHouston [14th Dist.] 2000, no pet.). AAA=s second issue is overruled.

Activities of Another Party

In its third issue, AAA argues the injunction is based on activities of a third partyCAAA=s landlord, who began filling a sand pit located on the Morton Road Facility property with soil. Because AAA had already dumped some of its raw wood into the sand pit, the wood has been partially covered with soil. AAA contends that only the person who is committing an environmental violation can be enjoined. Thus, AAA claims the trial court=s power to enjoin, if any, extended only to the owner of the Morton Road property.

After reviewing the terms of the injunction, however, we find the trial court enjoined activities for which AAA is responsible. AAA pushed the debris into the pit, not the landowner. AAA is the party that continues to accept additional wood at its facilities, not the landowner. If AAA is out of space to store more wood, it is because AAA has made no serious attempt at recycling the wood. Thus, AAA=s argument lacks merit, and its third point is overruled.

Balancing the Equities

AAA next contends that because Harris County failed to show that AAA violated any statutory regulations, the balance of equities favors AAA=s continued collection of raw materials. Again, we have already found that Harris County presented the trial court with abundant evidence showing AAA=s violation of Chapter 330. Accordingly, the trial court did not abuse its discretion in issuing the temporary injunction. Hartwell=s Office World v. Systex Corp., 598 S.W.2d 636 (Tex. App.CHouston [14th Dist.] 1980, writ ref=d n.r.e.). Appellant=s fourth issue is overruled.

The judgment of the trial court is affirmed.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Opinion filed December 12, 2002.

Panel consists of Chief Justice Brister and Justices Hudson and Fowler.

Do Not Publish C Tex. R. App. P. 47.3(b).

[1] The Commission has authority to file suit and seek injunctive relief if it shows a violation or threat of a violation of Chapter 361 of the Texas Health and Safety Code and Chapter 330 of the Texas Administrative Code. See Tex. Water Code Ann. ' 7.032(b), (d); ' 7.35 (a) (Vernon 2000).

[2] Chapter 332 of the Texas Administrative Code does not require a permit for a facility engaged in composting, which includes mulching, unless the facility adds any mixed municipal solid waste in the composting process. 30 Tex. Admin. Code '332.41(a)(2).

[3] We assume AAA=s raw materials could not be characterized as industrial raw materials, and thus fall outside of Chapter 330 regulations, because AAA failed to address the issue in its brief and nothing in either party=s brief suggests otherwise.

[4] One way recyclable material can become solid waste if it is abandoned or disposed, rather than recycled. 30 Tex. Admin. Code ' 330.2(114). AAA contends it has not Aabandoned@ its raw material, and thus the wood on its facilities is not solid waste. Harris County, however, has never alleged that AAA abandoned its materials. Harris County has only alleged that AAA is illegally storing solid waste on its property with no intention of actually recycling it.