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. ( 2015 )

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