ACCEPTED 04-15-00433-cv FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 11/30/2015 6:15:05 PM KEITH HOTTLE CLERK
NO. 04-15-00433-CV
FILED IN IN THE COURT OF APPEALS 4th COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS SAN ANTONIO, TEXAS SAN ANTONIO, TEXAS 11/30/2015 6:15:05 PM KEITH E. HOTTLE Clerk
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY and POST OAK CLEAN GREEN, INC.,
Appellants,
v. GUADALUPE COUNTY GROUNDWATER CONSERVATION DISTRICT,
Appellee.
REPLY BRIEF OF APPELLANT POST OAK CLEAN GREEN, INC.
Christopher L. Dodson John A. Riley State Bar No. 24050519 State Bar No. 16927900 chris.dodson@bgllp.com jriley@jgdpc.com Mark R. Wulfe JACKSON GILMOUR & DOBBS, PC State Bar No. 24088681 1115 San Jacinto Blvd., Suite 275 mark.wulfe@bgllp.com Austin, Texas 78701 BRACEWELL & GIULIANI LLP Telephone: (512) 574-8861 711 Louisiana Street, Suite 2300 Facsimile: (512) 574-8861 Houston, Texas 77002-2770 Telephone: (713) 223-2300 Facsimile: (713) 221-1212 ATTORNEYS FOR APPELLANT POST OAK CLEAN GREEN, INC.
ORAL ARGUMENT REQUESTED TABLE OF CONTENTS
Page INDEX OF AUTHORITIES................................................................................... iii INTRODUCTION ....................................................................................................1
ARGUMENT ............................................................................................................2
I. The Commission Has Exclusive (Or, Alternatively, Primary) Jurisdiction Over The Subject Matter of This Suit.........................................2 A. The District cannot reframe its claim as unconnected to Post Oak’s permit application. .....................................................................2
B. The District’s actions make clear it understands the true nature of this dispute. ......................................................................................4 C. The District fails to acknowledge the statutory authority cited by Post Oak. .........................................................................................5 D. The District’s arguments against exclusive jurisdiction not only fail, but confirm that this dispute is over the Commission’s authority over the siting of landfills. ....................................................7
E. The District’s argument regarding the Legislature’s failure to enact legislation after the trial court’s summary judgment ruling in this case is silly. ................................................................................9 F. The District’s amicus’s reliance on Texas Attorney General Opinion GA-1011 (2013) is unfounded. ............................................10
II. The District’s Suit Is Not Ripe. ....................................................................10 A. The District cannot distinguish the authorities cited by Post Oak and the Commission. ..........................................................................10 B. The petition and motion from the Denton County case are completely inapposite. ........................................................................13
C. Arguments made by Post Oak before the trial court after its plea to the jurisdiction was denied cannot create jurisdiction. ..................13
-i- Page III. The District’s Rule Cannot Be Enforced Through The UDJA ....................14 PRAYER .................................................................................................................15
CERTIFICATE OF COMPLIANCE ......................................................................16
CERTIFICATE OF SERVICE ...............................................................................17 APPENDIX .............................................................................................................18
-ii- INDEX OF AUTHORITIES
Page(s)
Cases Blue Cross Blue Shield of Tex. v. Duenez, 201 S.W.3d 674 (Tex. 2006) ................................................................................ 3
City of Anson v. Harper, 216 S.W.3d 384 (Tex. App.—Eastland 2006, no pet.) .......................................12 In re Crawford & Co., 458 S.W.3d 920 (Tex. 2015) ................................................................................ 3 Monk v. Huston, 340 F.3d 279 (5th Cir. 2003) ..............................................................................11
Robinson v. Central Tex. MHMR Center, 780 S.W.2d 169 (Tex. 1989) ..............................................................................10 In re Southwestern Bell Tel. Co., L.P., 235 S.W.3d 619 (Tex. 2007) ................................................................................ 3 Tex. Dep’t of Pub. Safety v. Deputy Sheriff’s Ass’n of Bexar County, No. 04-07-00233-CV, 2007 WL 3355626 (Tex. App.— San Antonio Nov. 14, 2007, pet. denied) ..................................................... 11-12 Tex. State Bd. of Veterinary Med. Exam’rs v. Giggleman, 408 S.W.3d 696 (Tex. App.—Austin 2013, no pet.) ..........................................14 Thomas v. Long, 207 S.W.3d 334 (Tex. 2006) ................................................................................ 3 Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849 (Tex. 2000).................................................................................11
Statutes 30 TEX. ADMIN. CODE. § 330.57(d) ........................................................................... 6
TEX. CIV. PRAC. & REM. CODE § 37.004..............................................................1, 14
-iii- Page(s) TEX. GOV’T CODE § 2001.038..................................................................................14
TEX. HEALTH & SAFETY CODE § 361.011 .................................................................. 6
TEX. HEALTH & SAFETY CODE § 361.151 .................................................................. 7
TEX. HEALTH & SAFETY CODE § 361.154 .................................................................. 7 TEX. HEALTH & SAFETY CODE § 363.022(a) ............................................................. 6 TEX. WATER CODE § 26.121(a)(1) .............................................................................6 TEX. WATER CODE. § 36.102 ...................................................................................14
TEX. WATER CODE § 49 ...........................................................................................10 TEX. WATER CODE § 51 ...........................................................................................10
Rules Guadalupe County Groundwater Conservation District Rule 8.1 ....................passim TEX. R. APP. P. 9.4(i)(1) ...........................................................................................16 TEX. R. APP. P. 9.4(i)(2)(B)......................................................................................16 TEX. R. APP. P. 9.4(i)(3), I........................................................................................16
TEX. R. APP. P. 38.1(g) ...............................................................................................4
Other Authorities Tex. Att’y Gen. Op. No. GA-1011 (2013)...............................................................10
-iv- INTRODUCTION The District devotes much of its Brief to insisting Post Oak and the
Commission have “re-fram[ed] the District’s declaratory-judgment claim as a
challenge to an as-yet-unissued solid waste disposal permit.” Appellee’s Br. 9.
This dispute, however, was first described in the District’s Original Petition, the
opening sentence of which “complains of [Post Oak’s] pursuit of a landfill permit.”
CR. 4; see also CR. 1193 (making the same charge in the Live Petition). In fact, it
is the District and its amicus who are attempting to recast the subject matter of the
District’s claim as anything other than what it is: the Commission’s consideration
of Post Oak’s landfill permit application. Because the Texas Legislature has made
the Commission responsible for this permitting process and the Commission has
yet to make a determination as to Post Oak’s application, the District’s claims must
be dismissed on exclusive (or, alternatively, primary) jurisdiction and ripeness
grounds. Moreover, the District’s rule cannot be enforced through the Uniform
Declaratory Judgments Act (“UDJA”). ARGUMENT
I. The Commission Has Exclusive (Or, Alternatively, Primary) Jurisdiction Over The Subject Matter of This Suit.
A. The District cannot reframe its claim as unconnected to Post Oak’s permit application. The District’s pleadings reveal that this dispute is over Post Oak’s right to
develop a landfill pursuant to a Commission-issued landfill permit. This lawsuit
followed the District’s initial and continuing participation in the Commission’s
permitting process, through which it is making the same complaints it does in this
suit about the suitability of the proposed landfill site. CR. 59-64, 1200. Not only
does the District’s petition complain of Post Oak’s “pursuit of a landfill permit,” it
renames Post Oak “the ‘Landfill Applicant.’” CR. 4.
The District and its amicus mischaracterize Appellants’ argument as
depending on the Commission having the authority to interpret the District’s rules.
The District contends that “TCEQ and Post Oak . . . argue that the trial court was
without jurisdiction because TCEQ has exclusive or primary jurisdiction to address
. . . whether Post Oak’s proposal . . . violates the District’s rules.” Appellee’s Br.
24. To the contrary, Post Oak has never claimed that the Commission has the
authority to interpret or apply the District’s rules. The issue here is not the control
of the Commission over the District’s rulemaking process. It is the District’s
-2- attempt to disrupt the Commission’s exclusive permitting authority through the
courts.
As explained in Post Oak’s Opening Brief, whether Post Oak may construct
a landfill in the location it proposes is a question the Texas Legislature has
entrusted the Commission to resolve. “A party cannot circumvent an agency’s
exclusive jurisdiction by filing a declaratory-judgment action if the subject matter
of the action is one ‘over which the Legislature intended the [administrative
agency] to exercise exclusive jurisdiction.’” Blue Cross Blue Shield of Tex. v.
Duenez, 201 S.W.3d 674, 676 (Tex. 2006) (alteration in original) (quoting Thomas
v. Long, 207 S.W.3d 334, 342 (Tex. 2006)). “Whether [a regulatory scheme]
provides the exclusive process and remedies . . . does not depend on the label of
the cause of action asserted.” In re Crawford & Co., 458 S.W.3d 920, 926 (Tex.
2015). “Instead, in assessing whether a claim falls within [an agency’s] exclusive
jurisdiction, courts must look at the substance of the claim.” Id.
Like the District here, the plaintiffs in In re Southwestern Bell Telephone
Co., L.P., “argue[d] that the [agency did] not have jurisdiction because it [could]
not grant the relief they request[ed].” 235 S.W.3d 619, 625 (Tex. 2007). The court
found that “[a] close inspection of Plaintiff’s claims, however, reveal[ed] that the
Legislature intended that the [agency] determine this type of dispute and gave it the
power to grant the relief requested.” Id. Here, the District objects to the siting of
-3- Post Oak’s proposed landfill, a decision squarely within the exclusive jurisdiction
of the Commission. The District may oppose and is opposing the siting,
construction, and operation of the landfill before the Commission through the
procedures established by the regulatory scheme.
B. The District’s actions make clear it understands the true nature of this dispute. The District’s conduct demonstrates the real purpose of this suit. In its
Brief, the District improperly references a statement by the Commission’s
Executive Director regarding the Commission’s lack of authority to interpret a
District rule made in response to a comment received regarding Post Oak’s
application. Appellee’s Br. 11. This reference to facts outside of the record should
be disregarded. See TEX. R. APP. P. 38.1(g). But, should the court consider recent
proceedings regarding Post Oak’s permit application, it should also consider that
the District has submitted the trial court’s order granting partial summary judgment
to the District in this case as evidence in the administrative hearing on the
application. See District’s Exhibit List and Cover Letter and Order on Motion for
Partial Summary Judgment, attached in Appendix, Tabs A & B. The District’s
using an order from this suit in the administrative proceeding reveals its true
intentions and that Appellants’ characterization of this suit as an “effort to block
the Commission’s issuance of Post Oak’s requested permit” is no unfounded
“grouse,” Appellee’s Br. 25, but rather the confirmed reality.
-4- This duplicity of the District completely undermines the claims it makes in
its Brief. The District disingenuously purports to have initiated a lawsuit seeking
the application of its own rule, decrying at every turn Post Oak’s and the
Commission’s identification of the suit for the attempt to undermine the
Commission’s permitting process that it is. Tellingly, after securing partial
summary judgment in its favor, the District took no action seeking enforcement of
the trial court’s ruling, but rather seeks to introduce the ruling as evidence in the
permitting process it contends is separate from this dispute. The District’s obvious
goal through its suit is to block the Commission’s permitting authority, but the trial
court lacks jurisdiction to do so.
C. The District fails to acknowledge the statutory authority cited by Post Oak. The District ignores the statutory authority evidencing the Commission’s
exclusive jurisdiction marshaled by Post Oak in its Opening Brief. Neither the
District nor its amicus address how the Solid Waste Disposal Act (“SWDA”)
provides that the Commission “is responsible . . . for the management of municipal
solid waste . . . and shall coordinate municipal solid waste activities”; “shall
accomplish the purposes of this chapter by controlling all aspects of the
management of municipal solid waste”; and “has the powers and duties specifically
prescribed by this chapter relating to municipal solid waste management . . . and all
-5- other powers necessary or convenient to carry out those responsibilities under this
chapter.” TEX. HEALTH & SAFETY CODE § 361.011.
The District and its amicus further ignore the detailed regulations supporting
the SWDA that demonstrate the pervasive nature of the regulatory scheme. See,
e.g., 30 TEX. ADMIN. CODE § 330.57(d) (stating that permit applications must
“provide the executive director data of sufficient completeness, accuracy, and
clarity to provide assurance that operation of the site will pose no reasonable
probability of adverse effects on the health, welfare, environment, or physical
property of nearby residents or property owners”). The District and its amicus also
ignore Post Oak’s citation to other statutes that reflect the primacy of the
Commission’s authority, such as the Comprehensive Act’s delegation to the
Commission of the power to implement and enforce that act’s provisions regarding
the management of municipal solid waste. TEX. HEALTH & SAFETY CODE §
363.022(a); see also TEX. WATER CODE § 26.121(a)(1) (“[N]o person may . . .
discharge . . . municipal waste . . . into or adjacent to any water in the state”
“[e]xcept as authorized by the [C]omission.” (emphasis added)).
In addition, the District and its amicus have no answer for how the sharply
limited authority given to counties and municipalities to prohibit solid waste
disposal in designated areas can be squared with the District’s attempt to
unconditionally prohibit the siting of landfills within its entire territory. As
-6- explained in Post Oak’s Opening Brief, the Comprehensive Act’s provisions
regarding the prescribed authority of some local government bodies’ abilities to
prohibit the disposal of solid waste in certain areas draw into sharp relief how the
judgment requested by the District would impermissibly interfere with the
Commission’s authority to approve the siting of waste facilities. The amicus brief
of Waste Management of Texas, Inc. and Texas Association of Business also
covers this issue. But the District does not bother to respond.
D. The District’s arguments against exclusive jurisdiction not only fail, but confirm that this dispute is over the Commission’s authority over the siting of landfills. The District and its amicus further acknowledge the true nature of this
dispute through their attempts to portray the Commission’s jurisdiction over the
siting of municipal solid waste landfills as shared rather than exclusive. The
District’s amicus notes that “the Legislature vested counties with the authority to
issue municipal solid waste permits” under certain circumstances and that, “[i]f an
applicant obtains a solid waste permit from the County, it need not obtain a permit
from the TCEQ.” Schertz-Seguin Amicus Br. 17-18. The SWDA, however,
provides not only that county rules regarding the management of solid must be
approved by the Commission, but that the Commission “may supersede any
authority granted to or exercised by a county” under the act. TEX. HEALTH &
SAFETY CODE §§ 361.151, 361.154. Moreover, this delegation is limited to
-7- counties. The District is not a county, so any authority delegated to counties is,
without more, not also delegated to the District.
The District also emphasizes that applicants for landfill permits such as Post
Oak must obtain additional permits for activities incidental to the construction and
operation of the landfill. Appellee’s Br. 30-31. For example, in its application
Post Oak reported that it was seeking a permit from the Texas Department of
Transportation (“TxDOT”) for driveway access to TxDOT-regulated roads and
authority from the Railroad Commission of Texas for the plugging of abandoned
oil and gas wells. CR. 694. These additional authorizations do not infringe on the
Commission’s jurisdiction over the siting of solid waste landfills. They merely
reflect that operating a landfill may implicate other areas of regulation. The
District’s attempt to ban the construction of landfills within its territory has nothing
to do with these ancillary permits. 1
The purpose behind the Commission’s jurisdiction over the siting of landfills
is demonstrated perfectly by the District’s amicus. The amicus devotes a
significant portion of its brief to complaining of the dangers of the proposed
1 The District’s amicus’s attempt to help the District with evidence outside the record actually hurts the District’s cause. Rule 8.1 purports to ban the application of waste not only over “the outcrop of the Wilcox Aquifers,” Schertz- Seguin Amicus Br. 6, but over “any aquifer.” This ban would cover the entire geographic boundary of the District, notwithstanding the District’s amicus’s representation to the Court.
-8- landfill. Similar complaints are not uncommon in the context of any landfill
permit application. Landfills, while not always welcomed by local communities,
provide a necessary, highly regulated and environmentally protective waste
disposal function. Recognizing this reality, the Texas Legislature entrusted the
Commission with exclusive jurisdiction over siting decisions. This ensures that
objections to proposed landfills will be heard and resolved by objective regulators
with subject-matter expertise, with appropriate participation by those opposed.
Without this centralized approach, every landfill application is destined to be
confounded by local opposition and resolved inconsistently in district courts
instead of by the state-sanctioned regulators.
E. The District’s argument regarding the Legislature’s failure to enact legislation after the trial court’s summary judgment ruling in this case is silly. The District finds it notable that the Legislature convened after the trial court
issued its summary judgment ruling in this case and did not pass legislation
clarifying the Commission’s exclusive jurisdiction. Of course, the Legislature
does not take action every time it disagrees with a trial court’s summary judgment
order, nor is it required to do so to avoid taking a position regarding a statute’s
interpretation. This case has not even reached final judgment on the merits, much
less been subject to appellate review. No implication can be drawn from the
Legislature’s failure to expressly overrule a trial-court summary judgment ruling
-9- issued earlier this year. See Robinson v. Central Tex. MHMR Center, 780 S.W.2d
169 (Tex. 1989) (adopting interpretation of statute in part because Legislature, in
the thirteen years following a Texas Supreme Court opinion interpreting the
statute, had not only failed to revise the language, but had reenacted the statute
without change).
F. The District’s amicus’s reliance on Texas Attorney General Opinion GA-1011 (2013) is unfounded. The Texas Attorney General Opinion relied upon by the District’s amicus
has nothing to do with the issues to be decided here. The opinion addressed a
water control and improvement district’s authority under Water Code Chapters 49
and 51 to regulate weeds and illegal dumping on overgrown lots in the district.
Not only does the District not have the powers granted by Chapter 51, but the
issues addressed in the opinion do not implicate the Commission’s exclusive
jurisdiction over the siting of municipal waste landfills. Whether a district can
regulate illegal dumping on an overgrown lot has no bearing on this dispute.
II. The District’s Suit Is Not Ripe.
A. The District cannot distinguish the authorities cited by Post Oak and the Commission. The District and its amicus have failed to explain how this suit is ripe for
adjudication. Post Oak has never contended, as the District insists it has, that a
declaratory judgment may not be sought until an alleged violation takes place.
-10- Appellee’s Br. 16. Rather, because Post Oak’s permit application has not been
granted by the Commission, “determining whether [the District] has a concrete
injury depends on contingent or hypothetical facts, [and] upon events that have not
yet come to pass.” Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851-52 (Tex.
2000).
The District’s amicus contends that the cases addressing ripeness cited in
Post Oak’s Opening Brief may be ignored because they involved takings claims.
However, the Fifth Circuit made clear in Monk v. Huston that “[a]lthough
plaintiffs’ claim need not satisfy the specific test applicable to takings claims, it
still must comply with the principles governing ripeness determinations generally.”
340 F.3d 279, 282 (5th Cir. 2003). Monk found the takings case it relied on to be
persuasive, if not controlling, and found the claim at issue not to be ripe because
“the TCEQ permitting process ha[d] not yet run its course.” Id.
The District and its amicus insist that Monk is distinguishable because the
District seeks the interpretation of Rule 8.1. However, the District does not seek
the construction of its own rule (which would be a peculiar suit for the District to
bring). Rather, it requests that the court apply Rule 8.1 in the context of Post
Oak’s proposed landfill. Either way, the District’s claim is unripe, as demonstrated
by Department of Public Safety v. Deputy Sheriff’s Association of Bexar County,
cited by the Commission in its Opening Brief and unmentioned in the briefs of the
-11- District or its amicus. No. 04-07-00233-CV, 2007 WL 3355626, at *1-3 (Tex.
App.—San Antonio Nov. 14, 2007, pet. denied). In that case, the plaintiff sought a
declaratory judgment regarding whether certain police officers were exempt from
discipline by the Texas Department of Public Safety pursuant to the Texas
Occupation Code. The suit was brought while an investigation regarding the
officers was underway but had not concluded. The court found the suit not to be
ripe because “[w]hether the Department [would] reach an adverse decision against
the officers in question, impose civil penalties, or refer the matter for criminal
prosecution [was] unknown at [that] time.” Id. at *2. “Consequently, the relief
[sought], at [that] point, would [have been] based on hypothetical or contingent
events that may not occur.” Id. at *3.
This case is no different. Because the permit may not be issued, any
declaration regarding the District’s rule would be premature.2 As explained in City
of Anson v. Harper, Texas appellate “courts have held that a declaratory judgment
action is premature if governmental proceedings which will impact the parties’
respective rights remain pending.” 216 S.W.3d 384, 394 (Tex. App.—Eastland
2006, no pet.). There is no reason for this court to find differently.
2 As the District concedes in its Brief, the trial court erred in finding that a permit had already been granted to Post Oak by the Commission. See Appellee’s Br. 10. This factual error by the trial court may have led it to wrongly determine that the District’s claim is ripe.
-12- B. The petition and motion from the Denton County case are completely inapposite. The District’s reliance on the petition in a suit brought by the Commissioner
of the Texas General Land Office is misplaced. Contrary to the District’s
contentions, that case has nothing to say about ripeness in the context of pending
agency action. Rather, it alleges that the General Land Office leases state-owned
mineral interests and at the time of suit “ha[d] active leases within the City of
Denton.” Appellee’s Br. App. C at ¶ 4.8. The District attempts to analogize that
case to this one by saying that the General Land Office did not contend that the
minerals were the subject of any permits or pending permits. These active leases
themselves, however, would have been legal interests immediately affected by the
municipal ordinance. There is simply nothing comparable in this case given the
absence of a Commission-issued permit.
C. Arguments made by Post Oak before the trial court after its plea to the jurisdiction was denied cannot create jurisdiction. The District contends that Post Oak’s having “argued to the trial court that
the District’s rule is preempted by the Solid Waste Disposal Act” demonstrates that
the District’s claim is ripe. Appellee’s Br. 16. Post Oak made these arguments
only after its plea to the jurisdiction on ripeness grounds was dismissed; they have
no bearing on the jurisdictional question.
-13- III. The District’s Rule Cannot Be Enforced Through The UDJA Finally, the District has failed to distinguish Texas State Board of Veterinary
Medical Examiners v. Giggleman’s conclusion that an administrative rule cannot
form the basis of a claim pursuant to the Uniform Declaratory Judgments Act
(“UDJA”). 408 S.W.3d 696, 707 (Tex. App.—Austin 2013, no pet.). Giggleman’s
holding is straightforward: “declarations . . . concerning the proper construction of
[an agency’s] rules, as opposed to a statute[,] . . . fall[] outside the UDJA
altogether.” Id. (citing TEX. CIV. PRAC. & REM. CODE § 37.004) Neither the
District nor its amicus cite a case addressing whether an administrative rule may be
enforced through the UDJA given its limited authorization.
Where the Texas Legislature has intended to authorize suits regarding the
applicability of administrative rules it has done so clearly. See TEX. GOV’T CODE §
2001.038 (authorizing declaratory judgment claims against state agencies
regarding the “validity or applicability” of a “rule”).
The District’s amicus treats the Water Code’s provision that a district may
enforce its rules “by injunction, mandatory injunction, or other appropriate remedy
in a court of competent jurisdiction” as authority for the district bringing suit under
the UDJA. Schertz-Seguin Amicus Br. 12-13 (citing TEX. WATER CODE § 36.102).
Bringing suit under the UDJA, however, is not an “appropriate remedy.” The
UDJA’s exclusion of claims challenging the construction of “rules” is not
-14- inconsistent with this authorization; it simply means that a particular procedural
device is unavailable to the District. The District may still otherwise enforce its
rules by “injunction . . . or other appropriate remedy.”
PRAYER For these reasons, Appellant Post Oak Clean Green, Inc. prays that the Court
reverse the trial court’s order denying the Commission’s plea to the jurisdiction
and render judgment dismissing the District’s claim. Appellant also prays for such
further relief to which it may be entitled.
Respectfully submitted,
BRACEWELL & GIULIANI LLP
By: /s/ Christopher L. Dodson Christopher L. Dodson State Bar No. 24050519 chris.dodson@bgllp.com Mark R. Wulfe State Bar No. 24088681 mark.wulfe@bgllp.com 711 Louisiana Street, Suite 2300 Houston, Texas 77002-2770 Telephone: (713) 223-2300 Facsimile: (713) 221-1212
-15- JACKSON GILMOUR & DOBBS, PC
John A. Riley State Bar No. 16927900 jriley@jgdpc.com 1115 San Jacinto Blvd., Suite 275 Austin, Texas 78701 Telephone: (512) 574-8861 Facsimile: (512) 574-8861
ATTORNEYS FOR APPELLANT POST OAK CLEAN GREEN, INC.
CERTIFICATE OF COMPLIANCE Pursuant to TEX. R. APP. P. 9.4(i)(3), I certify that this brief complies with
TEX. R. APP. P. 9.4(i)(2)(B) because it consists of 3,313 words, excluding the parts
of the brief exempted by TEX. R. APP. P. 9.4(i)(1).
/s/ Christopher L. Dodson Christopher L. Dodson
-16- CERTIFICATE OF SERVICE I certify that a copy of the Reply Brief of Appellant Post Oak Clean Green,
Inc., was served on counsel of record by EFile on the 30th day of November 2015,
addressed as follows:
Mr. Ken Paxton VIA EFILE Mr. Charles E. Roy Mr. Scott A. Keller Mr. Bill Davis Ms. Nancy Elizabeth Olinger Ms. Cynthia Woelk OFFICE OF THE ATTORNEY GENERAL P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Telephone: (512) 936-1896 Facsimile: (512) 370-9191 Attorneys for Texas Commission on Environmental Quality Ms. Marisa Perales VIA EFILE FREDERICK, PERALES, ALLMON & ROCKWELL, PC 707 Rio Grande, Suite 200 Austin, Texas 77552-6894 Attorneys for Guadalupe County Groundwater Conservation District
/s/Christopher L. Dodson Christopher L. Dodson
#5058673.4
-17-
Document Tab
District’s Exhibit List ................................................................................................ A
Cover Letter and Order on Motion for Partial Summary Judgment ......................... B
-18- EXHIBIT A SOAH DOCKET NO. XXX-XX-XXXX TCEQ DOCKET NO. 2012-0905-MSW
APPLICATION BY POST OAK § BEFORE THE STATE OFFICE CLEAN GREEN, INC. FOR A NEW § TYPE I MUNICIPAL SOLID WASTE § OF LANDFILL IN GUADALUPE § COUNTY, TEXAS § ADMINISTRATIVE HEARINGS
GUADALUPE COUNTY GROUNDWATER CONSERVATION DISTRICT’S PREFILED TESTIMONY AND EXHIBITS
Exhibit No. Tab No. Document Title Date
1 District 1 Cover Letter and Order on Plaintiff’s Motion For 1/16/15 Partial Summary Judgment 2 District 2 Prefiled Testimony of William B. Klemt 10/12/15
2A District 2A Resume & Selected Bibliography of William B. 6/1/15 Klemt 2B District 2B Sketch of proposed landfill site in relation to 10/12/15 Wilcox aquifer outcrop
2C District 2C Geologic Cross-Sections, Figures 4-10through 4- 10/22/14 16, Part III, Application 2D District 2D General Geological Interpretation of Geophysical 8/14 Boring Logs, Part III, Application 2E District 2E Sand Groundwater Gradient Map, Part III 4I-7, 10/22/14 Figure 2, Application
EXHIBIT B District Exhibit 1, pg. 1 District Exhibit 1, pg. 2 District Exhibit 1, pg. 3 District Exhibit 1, pg. 4 District Exhibit 1, pg. 5 District Exhibit 1, pg. 6 District Exhibit 1, pg. 7 District Exhibit 1, pg. 8 District Exhibit 1, pg. 9 District Exhibit 1, pg. 10 District Exhibit 1, pg. 11 District Exhibit 1, pg. 12 District Exhibit 1, pg. 13 District Exhibit 1, pg. 14 District Exhibit 1, pg. 15