Citizens Against the Landfill in Hempstead Michael McCall Wayne Knox And the City of Hempstead v. Texas Commission on Environmental Quality and Pintail Landfill, L.L.C.

Opinion

ACCEPTED 03-14-00718-CV 5604830 THIRD COURT OF APPEALS AUSTIN, TEXAS 6/9/2015 2:51:12 PM JEFFREY D. KYLE CLERK

NO. 03-14-00718-CV FILED IN 3rd COURT OF APPEALS IN THE COURT OF APPEALS AUSTIN, TEXAS FOR THE THIRD DISTRICT OF TEXAS, 6/9/2015 2:51:12 PM JEFFREY D. KYLE AT AUSTIN, TEXAS Clerk

CITIZENS AGAINST THE LANDFILL IN HEMPSTEAD, MICHAEL MCCALL, WAYNE KNOX, AND THE CITY OF HEMPSTEAD,

Plaintiffs/Appellants, v. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY AND PINTAIL LANDFILL, L.L.C., Defendants/Appellees.

On Appeal from the 201st District Court, Travis County, Texas

APPELLANTS' MOTION TO RECONSIDER DENIAL OF ORAL ARGUMENT

TO THE HONORABLE THIRD COURT OF APPEALS:

Pursuant to Rule of Appellate Procedure 10, Appellants Citizens Against the

Landfill in Hempstead and City of Hempstead file this Motion to Reconsider the

Denial of Oral Argument. Appellants have not received formal notice that oral

argument was denied, however, examination of the Court's webpage indicates that

oral argument was denied on May 11, 2015. As of the time of this filing, the case

has not been set for submission. ---, --

Pursuant to Texas Rule of Appellate Procedure 39.1 the Court may deny oral

argument if (a) the appeal is frivolous; (b) the dispositive issue has been

authoritatively decided; (c) the facts and legal arguments are adequately presented

in the briefs and record; or (d) the decisional process would not be significantly

aided by oral argument. The only basis Appellees alleged support their request to

deny oral argument fell under subparts (c) and (d). Therefore, Appellants contend

that the Appellees have conceded this appeal is not frivolous, and the issues have

not been authoritatively decided.

Here, the subject matter of this case is complicated by the applicable

regulatory provisions, and the Court's understanding of the regulatory analysis

would be appreciably aided by oral argument. Oral argument would bring clarity

to the written arguments presented by the briefs, and would assist the Court to

reach the correct result. Further, the briefs present an issue of first impression

concerning interpretation of the applicable regulations of Texas Commission on

Environmental Quality. Accordingly, Appellants respectfully request that the

Court reconsider its denial of oral argument and grant the Appellants request for

oral argument. Respectfully submitted,

HANCESCARBOROUGH,LLP 400 W. l 51h Street, Ste. 950 Austin, TX 78701 Telephone: (512) 479-8888 Facsimile: (512) 482-6891

State Bar No. 17716000 Michael L. Woodward State Bar No. 21979300 mwoodward@hslawmail.com V. Blayre Pena State Bar No. 24050372 bpena@hslawmail.com Wesley P. McGuffey State Bar No. 24088023 wmcguffey@hslawmail.com

ATTORNEYS FOR APPELLANTS CITIZENS AGAINST THE LANDFILL IN HEMPSTEAD, MICHAEL MCCALL, AND WAYNE KNOX KELLY HART & HALLMAN LLP 301 Congress Avenue, Suite 2000 Austin, Texas 78701 Telephone: (512) 495-6400 Facsimile: (512) 495-6401

By:~~~ Monica M. JaCCTus State Bar No. 24007433 Monica.Jacobs@kellyhart.com Diana L. Nichols State Bar No. 00784682 Diana.Nichols@kellyhart.com

ATTORNEYS FOR THE CITY OF HEMPSTEAD CERTIFICATE OF CONFERENCE

I hereby certify that the filing party conferred, or made a reasonable effort to

confer, with all other parties about the merits of the motion and whether those

parties oppose the motion. Appellees TCEQ and Pintail Landfill, LLC are

opposed. CERTIFICATE OF SERVICE

I hereby certify that a copy of Appellants' Brief was served on the following

counsel of record on June 9, 2015, via certified mail, return receipt requested,

and/or the electronic filing system:

Nancy Elizabeth Olinger Nancy. 0 linger@texasattorneygeneral.gov Cynthia Woelk Cynthia. Woelk@texasattomeygeneral.gov Daniel C. Wiseman Daniel.Wiseman@texasattorneygeneral.gov OFFICE OF THE ATTORNEY GENERAL OF TEXAS Environmental Protection Division (MC-066) P.O. Box 12548 Austin, TX 78711-2548 ATTORNEYS FOR TCEQ

Brent W. Ryan bryan@msmtx.com Paul R. Tough ptough@msmtx.com MCELROY, SULLIVAN, MILLER, WEBER & OLMSTEAD, LLP P.O. Box 12127 Austin, TX 78711 ATTORNEYS FOR THE PINTAIL LANDFILL, LLC

Michael S. Truesdale mike@truesdalelaw.com LAW OFFICE OF MICHAEL S. TRUESDALE, PLLC 801 West Avenue, Suite 201 Austin, TX 78701 ATTORNEYS FOR THE PINTAIL LANDFILL, LLC