                                                                                      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-
                                                   APPENDIX

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




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EXHIBIT B
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