TCEQ: Get the Lead Out

Texas' own version of the infamous garbage barge story took another twist on Thursday, with a landfill operator trying to get what he claims is hazardous waste removed from his dump winning at least a temporary victory at the Texas Commission on Environmental Quality.

In 1997, a load of television tubes containing lead-laced glass spilled onto I-35 in Hays Co. The tubes, property of the Zenith Electronics Corp. and being transported by Penske Truck Leasing, were then sent to the nearby Texas Disposal Systems landfill in Travis Co. TDS, not being certified to handle hazardous waste and fearing possible legal liability, demanded that Penske come get the waste and take it away. Penske refused, and a fight has since dragged on into the courts and regulatory agencies.

In June, TCEQ executive director Glenn Shankle reclassified the waste from "hazardous" to the less-serious "special" waste category, which eliminated the legal necessity for Penske to remove it. On Thursday, Sept. 16, TCEQ commissioners voted 2-1 to overturn that decision, and remanded the matter back to Shankle's office.

Central to Penske's arguments was the notion that the waste – which has since been mixed with other waste and clay and isolated into 99 roll-off bins separate from the rest of the landfill – has become so diluted within the other waste that, taken as a whole, the garbage can no longer be considered hazardous. Fearing the precedent that would set – basically, generators of hazardous waste could simply dilute it with other garbage and get it reclassified – commissioners Kathleen Hartnett White and Larry Soward said that the original waste must be dealt with, but gave neither the litigants nor Shankle any official direction on how to do it. Commissioner Ralph Marquez voted against overturning the decision.

Soward went to great pains not to lay harsh criticism on Shankle's original decision: "I believe that the executive director made the right decision based on the facts ... and the issues that [he] was looking at, at that time. I think we may have a different view, looking at all the facts and all the issues that we have to look at, at this time."

TDS President and CEO Bob Gregory said, "I'm thrilled. ... When [the waste] came in to us, it was represented to us as nonhazardous." Gregory said his facility would have never accepted the waste had he known its hazardous status. Gregory also said that the $3 million he has spent on the fight has been worth it to prevent legal status as the "generator" of the waste from shifting from Penske and Zenith to TDS. Had that happened, and TDS later sent the glass to a hazardous waste facility that later acquired Superfund status, "I could have a liability that could be worth megamillions of dollars."

Penske's lawyer, Bill Johnson of the Baker Botts firm, said "We believe the original decision [by Shankle] was correct, and we are confident that further testing will confirm the results of all the previous tests showing it is nonhazardous." A spokesman for Penske said that the company is uncertain how to proceed next, as it is awaiting further direction from Shankle.

The matter is also still awaiting trial in a Hays Co. courtroom. The case has already been to trial once, but a mistrial was declared in May because front-page publicity in the Austin American-Statesman tainted the jurors. A new trial is expected early next year.