Slay v. Texas Commission on Environmental Quality

At the center of this appeal is a September 2002 document, prepared by TCEQ's enforcement division, that sets forth an elaborate methodology for applying the statutory criteria to violations of the Texas Water Code (the penalty policy). The district court did not err in determining that the 2002 penalty policy was not a "rule" as defined in the APA but erred in purporting to exercise subject-matter jurisdiction over plaintiffs' §2001.038 claims. TCEQ's determination that the materials were waste is within the bounds of reasonableness. Given the supporting evidence, the inclusion of an explanation for each change, and the broad language of the penalty policy, TCEQ's amendments to the ALJ's conclusions cannot be considered arbitrary. The portion of the district court's judgment denying the state defendants' plea to the jurisdiction and holding that it has subject-matter jurisdiction over plaintiffs' APA §2001.038 claim is reversed. Plaintiffs' APA §2001.038 claim is dismissed for want of subject-matter jurisdiction. The district court's judgment is otherwise affirmed. Austin Court of Appeals, No. 03-10-00297-CV, 08-31-2011.