AC Interests v. TCEQ

Appeal Cause Number 01

- 15 -00378- CV

1 AC INTERESTS, L.P. FORMERLY § FIRST COURT OF APPEALS AMERICAN COATINGS, L.P. § OF TEXAS Appellant § v. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY, Appellee § HOUSTON , TEXAS § § CAUSE N O. 01
- 15
- 00378
- CV § §

SUPPLEMENTAL RESPONSE TO APPELLEE’S BRIEF FOR NOTICE OF APPEAL OF CAUSE NO. D-1
- GN -14 -005160 FROM THE 345th JUDICIAL DISTRICT

To the Honorable Justices Appellant AC Interests L.P., formerly American Coatings, L.P., Plaintiffs in the court below, respectfully submits this supplemental response to its brief in appeal of the 91a motion to dismiss granted in favor of Appellee, Texas Commission on Environmental Quality (“TCEQ”). Appellant respectfully requests that that the First Court of Appeals consider that a hearing with oral arguments be held. This response is intended to supplement the July 10, 2015 response to Appellee’s July 9, 2015 brief, and is not intended to delete any part of or supersede in any way Appellant’s brief of May 19, 2015 or delete any part of or supersede in any way Appellant’s response of July 10, 2015

.

Good and Sufficient Cause for Delay in Service It is brought to the Court ’ s attention that Appellee ’ s attorney required 51 days to file a reply brief. This exceeds the 30 day time limit in TRAP §38.6(b). Appellee ’ s attorney requested the extension due to “ demands on its counsel. ” ACCEPTED 01-15-00378-CV FIRST COURT OF APPEALS

HOUSTON, TEXAS 7/14/2015 2:14:29 AM CHRISTOPHER PRINE

CLERKAC Interests v. TCEQ

Appeal Cause Number 01

- 15

- 00378

- CV

2 T his is germane to Appellant’s contention that there was “good and sufficient” cause for the delay in the 30 day service as required by TCAA § 382.032 (c) as described on page 4 of Appellant ’ s Response Brief

. Since Appellant’s Attorney
received the notice of denial 1 of AC Interests ERCs via U.S. Mail on or about November 2 4 , 2014. Because I was aware th at that the staff was contemplating th e action relative to Chapter 101 , b etween November 2 4 , 2014 and December 10, 2014,
I spent nearly all my available hours readying the pleading for t he lawsuit filed December 10 th . After filing the lawsuit, this law off ice was so backlogged with other work that we neglected the service of citation. Therefore, my rationale for the exceedance of the TCAA 30 day limit was equivalent to the Appellee attorn ey ’ s rationale for exceedance of the TRAP 30 day limit. Confusion of Regulatory and Statutory Timelines by TCEQ Staff Action Additionally t he TCEQ staff effectively shortened the appeal time of the ERC denial f rom December 19, 2014 to December 10, 2014 ; that is, from 30 days to 21 days

. The rationale for this statement is as follows. On or about November 21 , 2014 2 , the TCEQ staff submitted a recommendation to the Commission that hearings be held regar ding the amendments to 30 TAC Chapter 101 as it relates to ERCs. Of specific interest in the present case is the proposal as it relates to 30 TAC §101.302

.

1 The Notice o f Denial was signed by the Deputy Executive Director, not the Executive Director as stated on page 5 of Appellee’s Brief. 2 Said recommendation was signed by the same Deputy Executive Director as referenced above in footnote 1

.AC Interests v. TCEQ

Appeal Cause Number 01

- 15

- 00378

- CV

3 The proposal would have arbitrarily remove d “area sources” , such as AC Interests, from any future consideration of being granted ERCs, with a few very narrow exceptions. The Commission approved this hearing request on December 10, 2014 , which is the date AC Interests filed suit on the TCEQ. This is relevant because the proposed regulatory change would have hypothetically flatl y denied ERCs to an area source such as AC Interests

. 3 This potentially could make difficult proving the case that AC Interests under the regulation were entitled to ERCs when the regulation pro jected to be in effect at the time the case would be heard would likely state specif i ca l ly that AC Interests is denied any entitlements to ERCs. This scenario wo uld likely tend to confuse the assigned Court and potentially tilt the case in the TCEQ ’ s favor. The Appellant
atto r ney submits that the “ compression ” of the ERC denial appeal time by the TCEQ
is unconscionable . Furtherm ore, t he Appellant atto r ney submits that the confusion of the regulatory and statutory timelines by this action by the TCEQ staff negates any claim the TCEQ has to law suit relief under TCAA § 382.032 (c)

. Prayer and Conclusion WHEREFORE, Appellant requests that Appellant have judgment of the Court as follows

. Because Appellant established that citation was served within the

3 On June 3, 2015 the Commission rejected the TCEQ staff ’ s proposal and retained 30 TAC § 101.302 essentially as it previ ously exi sted

. However, on December 10, 2014, the probability w as that the Commission would adopt the changes as proposed by the TCEQ staff.AC Interests v. TCEQ

Appeal Cause Number 01

- 15

- 00378

- CV

4 allowed timeframe in the TEX. WATER CODE

. AC Interests has shown due diligence and the 30 day timeframe should be tolled

. Appellant respectfully asks the court to reverse the district court’s ruling on granting the 91a motion to dismiss.
Respectfully submitted,

The Law Office of C. Will iam Smalling, PC 1700 Post Oak Blvd., 2 BLVD Place, Suite 600 Houston, TX 77056 Tel: (713) 513 7153 Fax: (866) 738 0042
By:

_ Bill Smalling

__ July 1 4 , 2015__________________ C. William Smalling State Bar No. 24075086 bsmalling@billsmallinglaw.com Attorneys for PlaintiffAC Interests v. TCEQ

Appeal Cause Number 01

- 15

- 00378

- CV

5 CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing document has been served on the following via hand delivery, express mail, electronic mail, facsimile, and/or U.S. First Class Mail, on or before the 1 4 th day of July , 2015.
1. The Commission represented by Cynthia Woelk, Assistant Attorney General, Texas Attorney General, Environmental Protection Div. (MC

- 066), P.O. Box 12548, Austin, Texas 78711

- 2548, Vox: (512) 463

- 2012, Fax: (512) 320

- 0911. Delivery A ddress: Office of the Attorney General, 300 W. 15th Street, Austin, TX 78701. Copies of this Appellant’s Response have been sent by U.S. certified mail, return receipt requested, to each of the parties as indicated on the attached Certificate of Service. The Law Office of C. William Smalling, PC 1700 Post Oak Blvd., 2 BLVD Place, Suite 600 Houston, TX 77056 Tel: (713) 513 7153 Fax: (866) 738 0042
By:

_ Bill Smalling

__ July 1 4 , 2015__________________ C. William Smalling State Bar No. 24075086 bsmalling@billsmallinglaw.com Attorneys for Plaintiff

.