                                                                                   ACCEPTED
                                                                               03-16-00270-CV
                                                                                     13113870
                                                                    THIRD COURT OF APPEALS
                                                                               AUSTIN, TEXAS
                                                                          10/6/2016 8:44:30 PM
                              NO. 03-16-00270-CV                             JEFFREY D. KYLE
                                                                                        CLERK
            ______________________________________________________

                           IN THE COURT OF APPEALS
                      FOR THE THIRD DISTRICT OF TEXAS FILED IN
                                                      3rd COURT OF APPEALS
                                   AT AUSTIN              AUSTIN, TEXAS
            _______________________________________________________
                                                      10/6/2016 8:44:30 PM
                                                        JEFFREY D. KYLE
         AC INTERESTS, L.P. FORMERLY AMERICAN                Clerk
                                                       COATINGS,    L.P.

                                   Appellant,

                                       v.

            TEXAS COMMISSION ON ENVIRONMENTAL QUALITY,

                                    Appellee.

   _________________________________________________________________________

                 APPELLANT’S REPLY TO APPELLEE’S BRIEF
     APPEAL OF CAUSE NO. D-1-GN-15-000779 FROM THE 98th JUDICIAL DISTRICT
   _________________________________________________________________________

                                     The Law Office of C. William Smalling, PC
                                      1700 Post Oak Blvd., 2 BLVD Pl, Ste 600
                                                            Houston, TX 77056
                                                            Tel: (713) 513 7153
                                                            Fax: (866) 738 0042
                                                      By: /s/Bill Smalling
                                                                October 6, 2016
                                                        State Bar No. 24075086
                                               bsmalling@billsmallinglaw.com
                                            ATTORNEYS FOR APPELLANT
PURSUANT TO TEXAS RULE OF APPELLANT PROCEDURE 39.7, APPELLANT
REQUESTS ORAL ARGUMENT




                                        1
                      IDENTITY OF PARTIES AND COUNSEL

  1. APPELLANT, AC INTERESTS, L.P. FORMERLY AMERICAN COATINGS,
     L.P. Trial and Appellate Attorneys are The Law Office of C. William Smalling, PC;
     Bill Smalling; 1700 Post Oak Blvd., 2 BLVD Pl, Ste 600; Houston, TX 77056; Tel:
     (713) 513 7153; Fax: (866) 738 0042; E-mail: bsmalling@billsmallinglaw.com.

  2. APPELLEE, TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Trial
     and Appellate Attorneys are Texas Attorney General, Environmental Protection
     Div. (MC-066); Cynthia Woelk, Assistant Attorney General; P.O. Box 12548;
     Austin, Texas 78711-2548; Vox: (512) 463-2012, Fax: (512) 320-0911. Delivery
     Address: Office of the Attorney General, 300 W. 15th Street, Austin, TX 78701.

The Law Office of C. William Smalling, PC
1700 Post Oak Blvd., 2 BLVD Pl, Ste 600
Houston, TX 77056
Tel: (713) 513 7153
Fax: (866) 738 0042
By: /s/Bill Smalling
October 6, 2016
State Bar No. 24075086
bsmalling@billsmallinglaw.com

ATTORNEYS FOR APPELLANT




                                             2
DESIGNATION OF RECORD REFERENCES


      This brief follows the format suggested by the Bluebook: e.g., Clerk’s Record:

“(CR:1.)” See THE BLUEBOOK, A UNIFORM SYSTEM OF CITATION,

Practitioners’ Note P.7 at 19-20 (Columbia Law Review Ass’n et al. eds., 18th ed.

2005).

      The record in this appeal consists of the clerk’s record, and the reporter’s

record. This brief uses the following conventions in citing the record:

      Clerk’s Record:

      CR: [page]

      Reporter’s Record:

      RR [vol]: [page]

COURT OF APPEALS THIRD DISTRICT OF TEXAS AUGUST 18, 2016

NOTICE

      The one-volume reporter’s record and original Joint Exhibits 1 and 2,

prepared by Ms. LaDelle Abilez, were filed in this Court on August 12, 2016.




                                          iii
                                        TABLE OF CONTENTS
                                                                                                           PAGE
IDENTITY OF PARTIES AND COUNSEL………………………………………ii

TABLE OF CONTENTS ......................................................................................... iii

INDEX OF AUTHORITIES...................................................................................... 1

I.      SUMMARY OF REPLY ................................................................................. 3

II.     ARGUMENT ................................................................................................... 5

A.      The TCEQ’s Rule 91a Motion to Dismiss was not supported by the TCEQ’s
        January 27, 2015 Filing……………………………………………………...5
        1. Legal Standard……………………………………………………………5
        2. The Complaint Adequately Pleads that that substantial rights of
           Plaintiff have been prejudiced because the decision is in violation of
           statutory provisions, is in excess of the Commission's statutory
           authority, and is arbitrary and capricious………………………………..10
             a. Facts of the Case as Pleaded in the Complaint………………….....10
             b. Compliance with the Applicable TCEQ Emission Reduction Credit
                 Law as Pleaded in the Complaint…………………………………10
       3. AC Interests’ original pleadings defeat the TCEQ’s 91a motion and the
          Commission’s 91a Motion Fails…………………………………………14

B.      The Commission Agrees that Area Sources such as AC Interests should be
        Allowed Emission Credits……………………….…………………………16

III.    PRAYER................................................................................................ .…..19

        CERTIFICATE OF COMPLIANCE .............................................................20

        CERTIFICATE OF SERVICE ......................................................................21

        INDEX TO APPENDIX AND APPENDICIES....…………………………22
                          INDEX OF AUTHORITIES

 CASES                                                                       Page

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562 (2007) (citing Car Carriers, Inc. v.
Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984))………………………..……8

Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984)……..…8

City of Dallas v. Sanchez, 449 S.W.3d 645, 650 (Tex. App.―Dallas 2014, pet. filed).
………………………………………………………………………………………..9

Drake v. Walker, No. 05-14-00355-CV, 2015 WL 2160565, at *3 (Tex. App.—
Dallas May 8, 2015, no. pet. h.) (mem. op.)………………………………………….9

GoDaddy.com v. Hollie Troups, 429 S.W.3d 752, 754 (Tex. App—Beaumont 2014,
pet. denied)……………………………………………………………………………7

Horizon/CMS Healthcasre Corp. v. Auld, 34 S.W.3d 887, 896 (Tex. 2000); but see
Plascencia v. State Farm Lloyds, No. 14-CV524-A, Doc. No. 17, at 9 (N.D. Tex.
Sept 25, 2014)………………………………………………………………………10

N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 1983)……………7

Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995)………...…….8

Plascencia v. State Farm Lloyds, No. 14-CV524-A, Doc. No. 17, at 9 (N.D. Tex.
Sept 25, 2014)……………………………………………………………………… 10

 STATUTES                                                                     Page

 Tex. Health & Safety Code
 § 382.032 (Vernon 2010)……………………………………………………………6

 Tex. Water Code
 §5.351……………………………………………………………………………..…6

 RULES

                                         1
Fed.R.Civ.P. 12(b)(6)……….…………………………………….…………………7
Fed.R.Civ.P. 8(a)……………………………………………………………….……7
Tex.R.Civ.P. 45(b)………………………………………………………………7,8, 9
Tex.R.Civ.P. 91a.1 and 91a.2……………. ……………………………….7, 8, 10, 15

TREATISES

Patton, Motions to Dismiss Under Texas Rule 91a, 33 Rev. of Lit. at 492 (citing
Ashcroft v. Iqbal, 556 U.S. 662, 696 (2009) (Souter, J., dissenting))…………….....9




                                       2
TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

      Appellant files its reply to appellee’s amended brief to the Appeal of Cause

No. D-1-Gn-15-000779 from the 98th Judicial District, of Travis County. Appellee’s

amended brief was file stamp dated September 19, 2016.


I.     SUMMARY OF REPLY

      AC     Interests’       action     was     filed     within      the    requisite

statutory deadline; namely, within 30 days of the February 26,

2015 final agency decision. Ad ministrative exhaustion of the

Deputy Director’s November 19, 2014 decision was fulfilled on

February 26, 2015, after the Executive Director’s 30th day of

silence on AC Interests’ January 28, 2015 petition for review

upheld the Deputy Director’s November 1 9, 2014 denial of

Emission Credits.

      The TCEQ keeps repeating that the Deputy ED issued the decision denying

AC Interests’ application for the certification of ERCs on November 19, 2014, and

the decision took effect that day, but “this suit (the 2015 suit) was not filed until

February 26, 2015. By statute, any appeal had to be filed by December 19, 2014.



                                             3
Although AC Interests filed the 2014 suit by the statutory deadline, this 2015 suit

was not filed until long after the deadline.”

      AC Interests’ does not believe that the “2014 suit” is relevant to this case.

Since the TCEQ is adamant that the “2014 suit” is relevant to this case, AC Interests’

believes that the district court erred in granting TCEQ’s 91a motion to dismiss. They

erred in granting the motion because the TCEQ’s Rule 91a Motion to Dismiss was

not supported by the TCEQ’s January 27, 2015 filing.

      In addition, as a policy matter, the Commission now agrees that Area Sources

such as AC Interests should be allowed emission credits.

      AC Interests should be allowed to move forward with their claim for emission

credits. They will be able to show that they have complied with the TCEQ’s

standards to receive emission credits. AC Interests is being unduly harmed by being

denied the opportunity to petition for the emission credits that they have earned by

emitting fewer toxins into the water and air. The statute that should be examined is

the Water Code as the Clean Air Act unduly harms the plaintiff. With respect to the

“2014 suit”, the court granting TCEQ’s 91a motion to dismiss is keeping the

Petitioner from obtaining the emission credits that they have earned and that they

are entitled as well as denying them a vested property right.

      In a separate action (Cause No. 16-0260), AC Interests has filed a brief


                                            4
    before The Supreme Court of Texas requesting said Court to review and

    reverse the aforementioned 91a Motion as granted by the Travis County trial

    court.

II. ARGUMENT

    A.    The TCEQ’s Rule 91a Motion to Dismiss Was Not Supported by the
TCEQ’s January 27, 2015 Filing

          1. Legal Standard
                                                                1
          On December 10, 2014, AC Interests filed an action,       which arises out of a

decision by TCEQ to deny Plaintiff’s application for certification of emission credits.

The TCEQ’s action was taken “under authority delegated by the executive director of

the TCEQ” and signed by Mr. Steve Hagle, P.E., Deputy Director Office of Air,

TCEQ in a letter dated November 19, 2014. This letter was in response to Plaintiff'

revised Application for Certification of Emission Credits (Form EC-I) received by

the TCEQ on July 23, 2014. The original Form EC-1 was received by the TCEQ on

October 17, 2013, with revisions received by the TCEQ on November 13, 2013, and

April 8, 2014. The lawsuit alleges that substantial rights of Plaintiff have been

prejudiced because the decision is in violation of statutory provisions, is in excess of

the Commission's statutory authority, and is arbitrary and capricious. Because



1
    Plaintiff’s Orig. Pet. (Appendix 7).

                                            5
Plaintiff met the burden of proof that the application for certification of emission

credits complies with all legal requirements, the application should have been

granted by TCEQ. Instead, the application for certification of emission credits was

denied.

         The Plaintiff’s application for certification of emission credits was

administratively denied “under authority delegated by the executive director of the

TCEQ” and signed by Mr. Steve Hagle, P.E., Deputy Director Office of Air, TCEQ

in a letter dated November 19, 2014. This letter was in response to Plaintiff's revised

Application for Certification of Emission Credits (Form EC-I) received by the TCEQ

on July 23, 2014. The original Form EC-1 was received by the on October 17, 2013,

with revisions received on November 13, 2013, and April 8, 2014. Plaintiff sought

judicial review of the final decision by TCEQ in this matter pursuant to Tex. Water

Code §5.351 and Texas Clean Air Act, Tex. Health & Safety Code § 382.032(a).2 In

response, on January 27, 2015, Defendants filed a Motion to Dismiss the Complaint

pursuant to Texas R. Civ. P. 91.a (“Rule 91a”).

         Texas Rule of Civil Procedure 91a allows a party to move for dismissal of a

groundless cause of action. The rule provides in pertinent part:

                 [A] party may move to dismiss a cause of action on the grounds
         that it has no basis in law or fact. A cause of action has no basis in law if

2
    Tex. Water Code §5.351 and Texas Clean Air Act, Tex. Health & Safety Code § 382.032(a).

                                                 6
       the allegations, taken as true, together with inferences reasonably drawn
       from them, do not entitle the claimant to the relief sought. A cause of
       action has no basis in fact if no reasonable person could believe the facts
       pleaded.3


       While not identical, courts have determined that Rule 91a is analogous to

Federal R. Civ. P. 12(b)(6). (“Rule 12(b)(6)”) 4 Rule 12(b)(6) allows dismissal if a

plaintiff fails to state a claim upon which relief can be granted. 5 For a complaint to

survive a Rule 12(b)(6) motion to dismiss, it must contain "enough facts to state a

claim to relief that is plausible on its face." 6 The petition is liberally construed in

favor of the plaintiff and all well-pleaded facts are taken as true. “The purpose of a

motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of the

complaint.”7

       Generally, a plaintiff’s burden at the pleading stage is relatively light. Federal

Rule 8(a) of the Federal Rules of Civil Procedure states that “[a] pleading which sets

forth a claim for relief . . . shall contain . . . a short and plain statement of the claim

showing that the pleader is entitled to relief.” 8 In ruling on a motion to dismiss

under Rule 12, the court analyzes the complaint and takes “all allegations of material

3
  TRCP 91a.l.
4
  GoDaddy.com v. Hollie Troups, 429 S.W.3d 752, 754 (Tex. App—Beaumont 2014, pet. denied).
5
  Fed. R. Civ. P. 12(b)(6).
6
  GoDaddy.com, 429 S.W.Sd at 754.
7
  N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 1983).
8
  Fed. R. Civ. P. 8(a).

                                              7
fact as true and construe(s) them in the lights most favorable to the non-moving

party.”   9
              A complaint must “contain either direct or inferential allegations respecting

all the material elements necessary to sustain recovery under some viable legal

theory.” 10 The factual allegations must be definite enough to “raise a right to relief

above the speculative level.” However, a complaint does not need detailed factual

allegations to survive dismissal. Rather, a complaint need only include enough facts

to state a claim that is “plausible on its face.” That is, the pleadings must contain

factual allegations “plausibly suggesting (not merely consistent with)” a right to

relief. 11

       Texas’ liberal pleading standards 12 distinguish the Rule 91a analysis from that

of Federal Rule 12(b)(6).

       A cause of action has no basis in fact if it is unsupported by factual allegations

such that “no reasonable person could believe the facts pleaded.” 13 U.S. Supreme

Court Justice David Souter urges discounting allegations only if they essentially refer




9
  Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995).
10
   Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562 (2007) (citing Car Carriers, Inc. v. Ford Motor
Co., 745 F.2d 1101, 1106 (7th Cir. 1984)).
11
   Id.
12
   TRCP 45(b).
13
   TRCP 91a.l.

                                                 8
to “little green men”, a “recent trip to Pluto”, or “time travel.”      14
                                                                             One Texas Court of

Appeals described the “no reasonable person” standard as follows:

               [W]e do not consider whether such allegations are likely, or even
       if the conduct alleged is outlandish, but only if a reasonable person
       could believe the alleged conduct….15


Another Texas court discusses “strictly construing” Rule 91a motions because

dismissal on the pleadings is a harsh remedy, and recommends construing pleadings

liberally in favor of the plaintiff with efforts to consider the pleader’s intent. 16

       In Texas, pleadings brought before state courts must contain a “statement in

plain and concise language, of the plaintiff's cause of action or the defendant's

grounds of defense . . .”   17
                                 As a benchmark for determining which complaints are

litigated and which dismissed, this “fair notice” standard imposes a limited onus on

the plaintiff. The court will consider “whether the opposing party can ascertain from

the pleading the nature and basic issues of the controversy and what testimony will




14
   Patton, Motions to Dismiss Under Texas Rule 91a, 33 Rev. of Lit. at 492 (citing Ashcroft v.
Iqbal, 556 U.S. 662, 696 (2009) (Souter, J., dissenting)).
15
   Drake v. Walker, No. 05-14-00355-CV, 2015 WL 2160565, at *3 (Tex. App.—Dallas May 8,
2015, no. pet. h.) (mem. op.).
16
   City of Dallas v. Sanchez, 449 S.W.3d 645, 650 (Tex. App.―Dallas 2014, pet. filed).
17
   TRCP 45(b).

                                                9
be relevant.” 18 Allegations that include legal conclusions will not establish grounds
                                                                                            19
for objection, as long as fair notice is communicated by the complaint as a whole.

      2. The “2014 Suit” Complaint Adequately Pleads that that substantial
rights of Plaintiff have been prejudiced because the decision is in violation of
statutory provisions, is in excess of the Commission's statutory authority, and is
arbitrary and capricious

       a. Facts of the Case as Pleaded in the Complaint 20

       The Plaintiff’s plant was destroyed by fire in 2010, and has not operated since

pending issuance of an air permit amendment to authorize reconstruction of the

facility. That amendment was issued in May 2013. Since this fire was a “Force

Majure”, Plaintiff did not shutdown of its own volition and would have operated

from 2010 to present. Additionally, the TCEQ Air Permits Division specifically

required that Plaintiff amend their permit (Number 22490) in order to reconstruct the

plant. This permitting process required from 2010 to the permit amendment issuance

date of May 17, 2013. Therefore, Plaintiff has been de facto in operation during the

period from July 2010 to present.

     b.    Compliance with the Applicable TCEQ Emission Reduction Credit
Law as Pleaded in the Complaint21
18
   Horizon/CMS Healthcasre Corp. v. Auld, 34 S.W.3d 887, 896 (Tex. 2000); but see Plascencia v.
State Farm Lloyds, No. 14-CV524-A, Doc. No. 17, at 9 (N.D. Tex. Sept 25, 2014) (McBryde, J.)
(concluding that TRCP 91a renders the issue of federal pleading standard versus state pleading
standard somewhat moot).
19
   TRCP 91a.l.
20
   Plaintiff’s Orig. Pet., P. 3; (Appendix 7).
21
   Plaintiff’s Orig. Pet., Pages 4 through 9; (Appendix 7).

                                              10
      On July 14, 2014, Plaintiff submitted a revised Application for Certification of

Volatile Organic Compounds (“VOC”) Emission Credits for Plaintiff for 7.33 tons

per year (“tpy”). This latter application is based on emissions occurring during

calendar years 2006 and 2007.

      This application met the certification process emission reduction strategy to

ensure the five criteria for creditability are satisfied as follows. First, only reductions

based on actual emissions are being certified. In determining the amount of credit

generated by a reduction strategy, the baseline emissions level at which the facility

emitted prior to the reduction strategy was calculated. The baseline emissions

consists of the facility’s activity level and emission rate averaged over any two

consecutive calendar years of operation preceding the reduction strategy and

following or including the most recent year of emissions inventory used in SIP

determination. The baseline activity is based on the facility’s actual operating hours,

production rate, or amount of materials processed, stored, or combusted over the two

year baseline period. The baseline emission rate is the most stringent emission rate

(permit limit, MACT, RACT) applicable to the facility during the two year baseline

period.

      Second, the amount of credit generated from a reduction or the level of

emissions reached by implementing the reduction strategy, that is the strategic
                                            11
emissions level, is determined. The emission reduction is not required by any

applicable local, state, or federal requirement in order to be creditable. The strategic

emissions level is lower than what would be required by an applicable New Source

Performance Standards (NSPS), National Emission Standards for Hazardous Air

Pollutants (NESHAPs), Maximum Achievable Control Technology (MACT),

Reasonably Available Control Technology (RACT), ESAD, or permit limit.

      Third, for an ERC to be certified, the baseline emissions and the strategic

emissions have been quantified using replicable methodologies and standard

protocols. The Environmental Protection Agency’s (EPA) Compilation of Air

Pollution Emission Factors and the TCEQ’s New Source Review (NSR) technical

guidance packages have been used as calculation methodologies. Plaintiff

substantiated their claimed reduction by submitting the most accurate data available

to support the baseline and strategic emission levels. A hierarchy of available data

used was production data, manufacturer’s data (MSD Sheets), and EPA Compilation

of Air Pollution Emission Factors (Emissions Inventory Improvement Program).

      Fourth, only the emission reductions which are unchanging are being

requested to be certified as ERCs. Fifth, Plaintiff will void Permit Number 22490

upon advisement by the TCEQ the reductions are creditable.




                                           12
      Finally, Plaintiff’s emissions are represented in the SIP as part of the area

source EI estimates because the site does not meet the definition of a major

facility/stationary source, as defined in 30 Texas Administrative Code (“TAC”)

§116.12. The owner of a regulated entity can claim to be in the area source EI

estimates if they were not required to report the site's emissions as a point source.

The Plaintiff’s site is not a major source as described in the reporting requirements

under 30 TAC §101.10(a)(1). Since Plaintiff did not emit a minimum of 10 tons per

year of volatile organic compounds (VOC) in either calendar year 2006 or 2007,

Plaintiff is withdrawing the retroactive EI reports submitted on October 13, 2013 for

calendar years 2006 and 2007. Additionally, Mr. Brymer’s letter of June 24, 2014

states the “retroactive EI reports [were] submitted on October 13, 2014”, which was

a date in the future of Mr. Brymer’s June 24 letter. Plaintiff reported a total of 7.88

tons of VOC emissions for 2006 and 6.79 tons of VOC emissions for 2007.

      This level of emissions is verifiable from the SARA 313 reports, which were

filed with the EPA for calendar years 2006 and 2007. Plaintiff reported a total of 1.88

tons of SARA reportable emissions for 2006 and 1.70 tons of SARA reportable

emissions for 2007. SARA reportable are a subset of VOC emissions and are

essentially a reporting of the plant’s hazardous emissions for the year. If one adopts a

reasonably conservative assumption that the SARA reportable are 25% of the total


                                           13
plant VOC emissions, the plant’s VOC emissions would be 7.52 tons for 2006 and

6.8 tons emissions for 2007. The average for the two years is 7.16 tons. This is only a

2.4% deviation from the Plaintiff’s July 14, 2014 revised Application for

Certification of VOC Emission Credits of 7.33 tons.

      Therefore, this cause of action has a basis in law, because the allegations,

taken as true, together with inferences reasonably drawn from them, entitle the

claimant to the relief sought. The cause of action has basis in fact, because a

reasonable person could believe the facts pleaded. This action should not be

dismissed pursuant to TRCP 91a.

          3.     AC Interests’ original pleadings defeat the TCEQ’s 91a
     motion and the Commission’s 91a Motion Fails

      This appeal concerns whether the trial court and Court of Appeals erred by

dismissing AC Interests’ claim against the TCEQ. The TCEQ styled its motion as a

Rule 91a motion to dismiss, and both parties refer to it as such. The motion,

however, is not supported by Rule 91a. Page 1 of the Commission’s January 27,

2015 91a Motion states:

      The Texas Commission on Environmental Quality (TCEQ) files this
      motion pursuant to Texas Rule of Civil Procedure 91a and appears for
      the limited purpose of proceedings on this motion. TCEQ is not
      appearing for other purposes….

      Under Rule 91a, “a party may move to dismiss a cause of action on the


                                           14
 grounds that it has no basis in law or fact.” 22 TRCP §91a.2 states: “A motion to

 dismiss must state that it is made pursuant to this rule, must identify each cause of

 action to which it is addressed, and must state specifically the reasons the cause of

 action has no basis in law, no basis in fact, or both. (emphasis added)” 23 The Court

 of Appeals even admitted that TRCP §91a was the wrong rule. Therefore, the

 TCEQ’s Rule 91a motion should have been dismissed by the Trial Court.

     The TCEQ motion pursuant to TRCP 91a.1 states: “Even taking AC Interests’

factual allegations as true, there is no basis in law for the Court to grant any of the

relief AC Interests seeks by any of its causes of action.” TRCP 91a.1 states:

     …. a party may move to dismiss a cause of action on the grounds that it has no
     basis in law or fact. A cause of action has no basis in law if the allegations,
     taken as true, together with inferences reasonably drawn from them, do not
     entitle the claimant to the relief sought. A cause of action has no basis in fact if
     no reasonable person could believe the facts pleaded. (emphasis added)24

     AC Interests’ December 10, 2014 pleadings cited reasonable grounds for the

lawsuit both in law and in fact. Among the citations in the pleadings are references to

TCEQ proposed rules, which among other things repeal provisions for generating

credits from area and mobile sources and for use by mobile sources. We argue that




22
   TRCP 91a.1.
23
   TRCP 91a.2.
24
   TRCP 91a.1.

                                            15
this defeats the TCEQ’s 91a Motion, and this instant Petition before The Supreme

Court of Texas should be granted.

      B.   The Commission Agrees that Area Sources such as AC Interests
should be Allowed Emission Credits

      On or about November 21, 2014, the TCEQ staff submitted a recommendation

to the Commission that hearings be held regarding the amendments to 30 TAC

Chapter 101 as it relates to Emission Reduction Credits (“ERCs”). The proposal as it

relates to 30 TAC §101.302 would have arbitrarily removed “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. The overarching purpose behind the TCEQ staff’s proposal for this rule change

is, on information and belief, that there has never been an ERC issued to an area

source by the Commission, and the TCEQ staff’s objective was to embed this

arbitrary policy into the TCEQ’s ERC rules.

      The Commission’s June 3, 2015 adoption of proposed changes to 30 Chapter

101 disavowed the staff’s November 21, 2014 recommendation that area sources be

removed from receiving ERC allowances under 30 TAC §101.302. In this action, the

Commission, with a few minor edits, retained the previous language in 30 TAC

§101.302 as it related to area sources.



                                          16
       The TCEQ staff effectively shortened the appeal time of the ERC denial from

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, 201425, the

TCEQ staff submitted a recommendation to the Commission that hearings be held

regarding the amendments to 30 TAC Chapter 101 as it relates to ERCs. As stated

above, 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 flatly denied ERCs to an area source such as AC Interests.26 This

potentially could have made difficult proving the case that AC Interests under the

regulation were entitled to ERCs when the regulation projected to be in effect at the

time the case would be heard would likely state specifically that AC Interests is

denied any entitlements to ERCs.

       Now the Commission is reversing its field and is in fact in the process of

proposing modifications to the ERC rules, which would require the TCEQ staff to

consider and grant ERCs to area sources. Appendix 9 includes an announcement of


25
   Said recommendation was signed by the same Deputy Executive Director that signed the AC
Interests ERC denial letter on November 19, 2014.
26
   On June 3, 2015 the Commission rejected the TCEQ staff’s proposal and retained 30 TAC
§101.302 essentially as it previously existed. However, on December 10, 2014, the probability was
that the Commission would adopt the changes as proposed by the TCEQ staff.

                                               17
preliminary public meetings regarding said proposed modifications to the ERC rules.

This is a step in the right direction; however, since TCEQ rule changes are rarely

retroactive, it is unlikely that the contemplated rule changes will benefit AC Interests.




                                           18
III.    PRAYER

       AC Interests asks this Court to reverse the Amended Plea to the Jurisdiction

granted in favor of Appellee, Texas Commission on Environmental Quality. The

Appellant prays that the district court’s order be reversed.


                          The Law Office of C. William Smalling, PC
                          1700 Post Oak Blvd., 2 BLVD Pl, Ste 600
                          Houston, TX 77056
                          Tel: (713) 513 7153
                          Fax: (866) 738 0042

                          By: /s/Bill Smalling
                          October 6, 2016
                          State Bar No. 24075086
                          bsmalling@billsmallinglaw.com
                          Attorneys for Plaintiff




                                           19
CERTIFICATE OF COMPLIANCE

      As required by Texas Rules of Appellate Procedure §§9.4(i)(2)(E) and (3), I

certify that this reply contains 3,544 words (less than 7,500). This is a computer

generated document created in Microsoft Word. In making this certificate, I have

relied on the word count provided by the computer program used to prepare the

document.

The Law Office of C. William Smalling, PC
1700 Post Oak Blvd., 2 BLVD Pl, Ste 600
Houston, TX 77056
Tel: (713) 513 7153
Fax: (866) 738 0042
/s/Bill Smalling
By: Bill Smalling
October 6, 2016
State Bar No. 24075086
bsmalling@billsmallinglaw.com

ATTORNEYS FOR PETITIONER
    AC INTERESTS, L.P. FORMERLY AMERICAN COATINGS, L.P.




                                          20
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 6th day of October, 2016.

   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 Address: Office of the Attorney General, 300 W. 15th Street, Austin,

      TX 78701. E-mail: cynthia.woelk@texasattorneygeneral.gov.



                                       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: /s/_Bill Smalling__
                                       October 6, 2016__________________
                                       C. William Smalling
                                       State Bar No. 24075086
                                       bsmalling@billsmallinglaw.com
                                       Attorneys for Plaintiff.




                                          21
INDEX TO APPENDIX AND APPENDICIES


APPENDIX DOCUMENT NAME OR DESCRIPTION
 TAB NO.
Mandatory
The text of any rule, regulation, ordinance, statute, constitutional provision, or
other law on which the argument is based (excluding case law).
      1          Tex. Health & Safety Code § 382.032 (Vernon 2010)
      2          Tex. Water Code §5.351
      3          Fed. R. Civ. P. 12(b)(6)
      4          Fed. R. Civ. P. 8(a)
      5          Tex. R. Civ. P. 45(b)
      6          Tex. R. Civ. P. 91a.1 and 91a.2
Optional
      7          AC Interests’ December 10, 2014 pleading.
                 AC Interests’ February 19, 2015 Response to Commission’s 91a
      8
                 Motion
                 Announcement of Preliminary Public Meetings Regarding
      9
                 Proposed Modifications to ERC Rules




                                         22
APPENDIX 1
Sec. 382.032. APPEAL OF COMMISSION ACTION. (a) A person affected by a ruling, order,
decision, or other act of the commission or of the executive director, if an appeal to the
commission is not provided, may appeal the action by filing a petition in a district court of Travis
County.
(b) The petition must be filed within 30 days after the date of the commission's or executive
director's action or, in the case of a ruling, order, or decision, within 30 days after the effective
date of the ruling, order, or decision. If the appeal relates to the commission's failure to take
final action on an application for a federal operating permit, a reopening of a federal operating
permit, a revision to a federal operating permit, or a permit renewal application for a federal
operating permit in accordance with Section 382.0542(b), the petition may be filed at any time
before the commission or the executive director takes final action.
(c) Service of citation on the commission must be accomplished within 30 days after the date on
which the petition is filed. Citation may be served on the executive director or any commission
member.
(d) The plaintiff shall pursue the action with reasonable diligence. If the plaintiff does not
prosecute the action within one year after the date on which the action is filed, the court shall
presume that the action has been abandoned. The court shall dismiss the suit on a motion for
dismissal made by the attorney general unless the plaintiff, after receiving due notice, can show
good and sufficient cause for the delay.
(e) In an appeal of an action of the commission or executive director other than cancellation or
suspension of a variance, the issue is whether the action is invalid, arbitrary, or unreasonable.
(f) An appeal of the cancellation or suspension of a variance must be tried in the same manner as
appeals from the justice court to the county court.

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1993, 73rd Leg., ch.
485, Sec. 5, eff. June 9, 1993; Acts 1995, 74th Leg., ch. 76, Sec. 11.155, eff. Sept. 1, 1995.
APPENDIX 2
Texas Water Code § 5.351.      Judicial Review of Commission Acts

(a) A person affected by a ruling, order, decision, or other act of the commission may file a
petition to review, set aside, modify, or suspend the act of the commission.

(b) A person affected by a ruling, order, or decision of the commission must file his petition
within 30 days after the effective date of the ruling, order, or decision. A person affected by an
act other than a ruling, order, or decision must file his petition within 30 days after the date the
commission performed the act.
APPENDIX 3


Fed.R.Civ.P. 12. Defenses and Objections: When and How Presented; Motion for Judgment on
the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing
(b) HOW TO PRESENT DEFENSES. Every defense to a claim for relief in any pleading must be
asserted in the responsive pleading if one is required. But a party may assert the following
defenses by motion:
     (1)-(5) ………;
     (6) failure to state a claim upon which relief can be granted; and….
APPENDIX 4


Fed.R.Civ.P. 8. General Rules of Pleading
(a) CLAIM FOR RELIEF. A pleading that states a claim for relief must contain:
     (1) a short and plain statement of the grounds for the court's jurisdiction, unless the court
  already has jurisdiction and the claim needs no new jurisdictional support;
     (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and
    (3) a demand for the relief sought, which may include relief in the alternative or different
  types of relief.
APPENDIX 5

Tex.R.Civ.P. 45(b) DEFINITION AND SYSTEM

Pleadings in the district and county courts shall

(a) be by petition and answer;

(b) consist of a statement in plain and concise language of the plaintiff's cause of action or the
defendant's grounds of defense. That an allegation be evidentiary or be of legal conclusion shall
not be grounds for objection when fair notice to the opponent is given by the allegations as a
whole; and….
APPENDIX 6

RULE 91a. DISMISSAL OF BASELESS CAUSES OF ACTION
91a.1 Motion and Grounds. Except in a case brought under the Family Code or a case governed
by Chapter 14 of the Texas Civil Practice and Remedies Code, a party may move to dismiss a
cause of action on the grounds that it has no basis in law or fact. A cause of action has no basis
in law if the allegations, taken as true, together with inferences reasonably drawn from them do
not entitle the claimant to the relief sought. A cause of action has no basis in fact if no
reasonable person could believe the facts pleaded.
91a.2 Contents of Motion. A motion to dismiss must state that it is made pursuant to this rule,
must identify each cause of action to which it is addressed, and must state specifically the
reasons the cause of action has no basis in law, no basis in fact, or both.
                                                                12/10/2014 11:10:45 AM
                                                                        Amalia Rodriguez-Mendoza
                                                                                      District Clerk
                                                  D-1-GN-14-005160                    Travis County
                                    CAUSE    NO. __________                        D-1-GN-14-005160


    AC INTERESTS, L.P. FORMERLY                     § IN THE DISTRICT COURT
    AMERICAN COATINGS, L.P.                         §
    Plaintiff                                       §
    v.                                              § OF TRAVIS COUNTY, TEXAS
                                                    §
    TEXAS COMMISSION ON                             § 53RD
    ENVIRONMENTAL QUALITY,                          § _____ JUDICIAL DISTRICT
    Defendant                                       §

                           PLAINTIFF'S ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

       COMES NOW, AC INTERESTS, L.P. FORMERLY AMERICAN COATINGS, L.P.

("Plaintiff") and files this its Original Petition against the Texas Commission on Environmental

Quality (the "Commission" or "TCEQ") and for cause of action would respectfully show the

Court as follows:

I. DISCOVERY CONTROL PLAN

       This cause of action is a judicial review of an action by an administrative agency and

therefore will be based on the administrative record. Designation of a level of discovery is level

1 discovery.

II. BACKGROUND

       This lawsuit arises out of a decision by TCEQ to deny Plaintiff’s application for

certification of emission credits. The TCEQ’s action was taken “under authority delegated by the

executive director of the TCEQ” and signed by Mr. Steve Hagle, P.E., Deputy Director Office

of Air, Texas Commission on Environmental Quality in a letter dated November 19, 2014.

This letter was in response to Plaintiff' revised Application for Certification of Emission Credits

(Form EC-I) received by the TCEQ on July 23, 2014. The original Form EC-1 was received by

the on October 17, 2013, with revisions received on November 13, 2013, and April 8, 2014.

AC INTERESTS, L.P. FORMERLY
AMERICAN COATINGS, L.P. v. TCEQ                     1
Substantial rights of Plaintiff have been prejudiced because the decision is in violation of

statutory provisions, is in excess of the Commission's statutory authority, and is arbitrary and

capricious. Because Plaintiff met the burden of proof that the application for certification of

emission credits complies with all legal requirements, the application should have been granted

by TCEQ. Instead, the application for certification of emission credits was denied. Plaintiff is

seeking judicial review of this decision by TCEQ and is requesting that it be reversed by this

Court.

III. PROCEDURAL BACKGROUND

         Plaintiff’s application for certification of emission credits was administratively denied

“under authority delegated by the executive director of the TCEQ” and signed by Mr. Steve

Hagle, P.E., Deputy Director Office of Air, Texas Commission on Environmental Quality

in a letter dated November 19, 2014. This letter was in response to Plaintiff's revised

Application for Certification of Emission Credits (Form EC-I) received by the TCEQ on July 23,

2014. The original Form EC-1 was received by the on October 17, 2013, with revisions received

on November 13, 2013, and April 8, 2014. Pursuant to 30 TAC §50.131(c)(5), Mr. Hagle’s letter

constitutes final administrative action by the TCEQ. Plaintiff seeks judicial review of the final

decision by TCEQ in this matter pursuant to the Texas Commission on Environmental Quality,

TEX. WATER CODE §5.351 and Texas Clean Air Act, TEX. HEALTH & SAFETY CODE §

382.032(a).

IV. VENUE

         Venue properly exists in Travis County, Texas, pursuant to the Texas Clean Air Act, TEX.

HEALTH & SAFETY CODE § 382.032.

V. PARTIES


AC INTERESTS, L.P. FORMERLY
AMERICAN COATINGS, L.P. v. TCEQ                     2
       (1) The PLAINTIFF’S plant was destroyed by fire in 2010, and has not operated since

pending issuance of an air permit amendment to authorize reconstruction of the facility. That

amendment was issued in May 2013. Since this fire was a “Force Majure”, Plaintiff did not

shutdown of its own volition and would have operated from 2010 to present. Additionally, the

TCEQ Air Permits Division specifically required that Plaintiff amend their permit (Number

22490) in order to reconstruct the plant. This permitting process required from 2010 to the permit

amendment issuance date of May 17, 2013. Therefore, Plaintiff has been de facto in operation

during the period from July 2010 to present.

       (2)The Commission is an agency of the State of Texas. Service on the Commission may

be accomplished by delivering a copy of this instrument to Richard Hyde, P.E., Executive

Director of TCEQ, at 12100 Park 35 Circle, Austin, Texas, 78753, pursuant to the Texas Clean

Air Act, TEX. HEALTH & SAFETY CODE § 382.032.

       (3) The TCEQ Executive Director, represented by Steve Shepherd and Susan White, P.O.

Box 13087, MC-173, Austin, Texas, 78711-3087.

       Copies of this Plaintiff's Original Petition have been sent by U.S. certified mail, return

receipt requested, to each of the parties as indicated on the attached Certificate of Service.

VI. TRANSMISSION OF RECORD

       Demand is hereby made that the Commission transmit the original or a certified copy of

the entire record of the agency’s administrative file relating to Plaintiff’s emission credit

application to the Court within the time permitted by law.

VII. GROUNDS FOR REVERSAL OR REMAND

       Plaintiff asserts not only a violation of procedural Due Process, but also a challenge to

substantive Due Process. Both federal and state constitutions require both procedural and



AC INTERESTS, L.P. FORMERLY
AMERICAN COATINGS, L.P. v. TCEQ                      3
substantive Due Process protections. (Barshop v. Medina County Underground Water

Conservation District, 925 SW2d 618, 632 (Tex. 1996); Texas Workers' Comp. Com'n v. Garcia,

893 SW2d 504, 525-26 (Tex. 1995); Eggemeyer v. Eggemeyer, 554 SW2d 137,140 (Tex. 1977)).

Substantive Due Process demands that governmental action not be arbitrary, unreasonable, or

capricious and that the means utilized by the state have a real and substantial relation to the object

sought to be obtained. Plaintiff request’s the court to determine whether the agency decision

complied with substantive Due Process by being supported by substantial evidence. (Continental

Casualty Co. v. Functional Restoration Ass'n, 964 SW2d 776, 782 (Tex.App. Austin 1998)).

       Substantial rights of Plaintiff have been prejudiced because the decision is in violation of

statutory provisions, is in excess of the Commission's statutory authority, and is arbitrary and

capricious. Because Plaintiff met the burden of proof that the application for certification of

emission credits complies with all legal requirements, the application should have been granted

by TCEQ. Instead, the application for certification of emission credits was denied. Plaintiff is

seeking judicial review of this decision by TCEQ and is requesting that it be reversed by this

Court. (Texas Commission on Environmental Quality, TEX. WATER CODE §5.351 and Texas

Clean Air Act, TEX. HEALTH & SAFETY CODE § 382.032(a)).

VIII. DETAIL OF AGENCY ERRORS

A.     Creditable Emissions

       On July 14, 2014, Plaintiff submitted a revised Application for Certification of Volatile

Organic Compounds (“VOC”) Emission Credits for Plaintiff for 7.33 tons per year (“tpy”). This

latter application is based on emissions occurring during calendar years 2006 and 2007. Enclosed

is the required Form EC-1 and accompanying documentation. We are requesting that the TCEQ

approve this application.



AC INTERESTS, L.P. FORMERLY
AMERICAN COATINGS, L.P. v. TCEQ                       4
          For the Manufacturing Vent (EPN M-1) improved process parameters were used to

calculate emissions for the years 2006 and 2007. This is summarized in Table 1. The EPA

Compilation of Air Pollution Emission Factors (Emissions Inventory Improvement Program) [AP-42] was

used to calculate emissions from EPN M-1. The emission factors were used to calculate total emissions

(VOC, Ammonia, and Acetone) from EPN M-1. In Table 2, these emissions were divided in accordance

with the Maximum Allowable Emission Rate Table (“MAERT”) in Permit Number 22490. The allowable

emissions in the Permit 22490 MAERT were based on a TCEQ review of Plaintiff’s historical production

for the years 2005 through 2009.


                                                  Table 1

 Source       Polluta Year                                  Calculation of ERCs
 EPN          nt
                               Baseline Activity                      Allowable Emissions

                                     Activity         BER         RER             ER           Tons

                                                      3.12
                                                     pounds
                      2006         4736 Batches       VOC         None            7.38        19.12
                                                       per
                                                     batch*
    M-1        VOC
                                                      3.14
                                                     pounds
                      2007         4009 Batches       VOC         None            6.29        19.12
                                                       per
                                                     batch**

    M-1                        VOC Average 2006-2007                              6.84

     F-1                       VOC Average 2006-2007                              0.49

    Total                      VOC Average 2006-2007                              7.33

                      2006*                            4.80 pounds VOC + Ammonia + Acetone per batch*

                     2007**                            4.83 pounds VOC + Ammonia + Acetone per batch**


                                                  Table 2




AC INTERESTS, L.P. FORMERLY
AMERICAN COATINGS, L.P. v. TCEQ                         5
                                                  VOC +                        Ammoni        Acetone
                                                 Ammonia +                     a (Non-        (Non-
 EPN           SOURCE                             Acetone           VOC         VOC)          VOC)
               Year 2006                           TPY              TPY          TPY           TPY

 M-1           Paint Manufacturing                 11.371         7.383***      0.745*       3.243**
 FUG-1         Pipe Components Fugitive             0.490           0.490       0.000         0.000
 TOTAL         2006                                11.861           7.873        0.745        3.243
                                                  VOC +                        Ammoni        Acetone
                                                 Ammonia +                     a (Non-        (Non-
 EPN           SOURCE                             Acetone           VOC         VOC)          VOC)
               Year 2007                            TPY             TPY          TPY           TPY

 M-1           Paint Manufacturing                  9.693         6.293***      0.635*       2.764**


 FUG-1     Pipe Components Fugitive      0.490       0.490        0.000      0.000
  TOTAL               2007              10.183       6.783        0.635      2.764
      Average 2006-2007 VOC Emission Credits         7.328
 *Ammonia = 6.55% of EPN M-1 VOC + Ammonia + Acetone [ See below: 1.94/29.63*100]

 **Acetone = 28.52% of EPN M-1 VOC + Ammonia + Acetone [ See below: 8.45/29.63*100]

 ***VOC = 64.93% of EPN M-1 VOC + Ammonia + Acetone [ See below: 19.24/29.63*100]

                                    Permit 22490 MAERT
Emission Point No.         Source Name       Air Contaminant Name                     Emissions
                                                                                         TPY
M-1                        Manufacturing          VOC                                    19.24
                                                  Ammonia                                 1.94
                                                  Exempt Solvent                         8.45
                                                  (Acetone)
                                                  Total                                  29.63

This application met the certification process emission reduction strategy to ensure the five

criteria for creditability are satisfied as follows. First, only reductions based on actual emissions

are being certified. In determining the amount of credit generated by a reduction strategy, the

baseline emissions level at which the facility emitted prior to the reduction strategy was

calculated. The baseline emissions consists of the facility’s activity level and emission rate


AC INTERESTS, L.P. FORMERLY
AMERICAN COATINGS, L.P. v. TCEQ                      6
averaged over any two consecutive calendar years of operation preceding the reduction strategy

and following or including the most recent year of emissions inventory used in SIP determination.

The baseline activity is based on the facility’s actual operating hours, production rate, or amount

of materials processed, stored, or combusted over the two year baseline period. The baseline

emission rate is the most stringent emission rate (permit limit, MACT, RACT) applicable to the

facility during the two year baseline period.

       Second, the amount of credit generated from a reduction or the level of emissions reached

by implementing the reduction strategy, that is the strategic emissions level, is determined. The

emission reduction is not required by any applicable local, state, or federal requirement in order

to be creditable. The strategic emissions level is lower than what would be required by an

applicable New Source Performance Standards (NSPS), National Emission Standards for

Hazardous Air Pollutants (NESHAPs), Maximum Achievable Control Technology (MACT),

Reasonably Available Control Technology (RACT), ESAD, or permit limit.

       Third, for an ERC to be certified, the baseline emissions and the strategic emissions have

been quantified using replicable methodologies and standard protocols. The Environmental

Protection Agency’s (EPA) Compilation of Air Pollution Emission Factors and the TCEQ’s New

Source Review (NSR) technical guidance packages have been used as calculation methodologies.

Plaintiff substantiated their claimed reduction by submitting the most accurate data available to

support the baseline and strategic emission levels. A hierarchy of available data used was

production data, manufacturer’s data (MSD Sheets), and EPA Compilation of Air Pollution

Emission Factors (Emissions Inventory Improvement Program).




AC INTERESTS, L.P. FORMERLY
AMERICAN COATINGS, L.P. v. TCEQ                     7
       Fourth, only the emission reductions which are unchanging are being requested to be

certified as ERCs. Fifth, Plaintiff will void Permit Number 22490 upon advisement by the TCEQ

the reductions are creditable.

       Finally, Plaintiff’s emissions are represented in the SIP as part of the area source EI

estimates because the site does not meet the definition of a major facility/stationary source, as

defined in 30 Texas Administrative Code (TAC) §116.12. The owner of a regulated entity can

claim to be in the area source EI estimates if they were not required to report the site's emissions

as a point source. The Plaintiff’s site is not a major source as described in the reporting

requirements under 30 TAC §101.10(a)(1). Since Plaintiff did not emit a minimum of 10 tons per

year of volatile organic compounds (VOC) in either calendar year 2006 or 2007, Plaintiff is

withdrawing the retroactive EI reports submitted on October 13, 2013 for calendar years 2006

and 2007. Additionally, Mr. Brymer’s letter of June 24, 2014 states the “retroactive EI reports

[were] submitted on October 13, 2014”, which was a date in the future of Mr. Brymer’s June 24

letter. Plaintiff reported a total of 7.88 tons of VOC emissions for 2006 and 6.79 tons of VOC

emissions for 2007.

       This level of emissions is verifiable from the SARA 313 reports, which were filed with

the EPA for calendar years 2006 and 2007. Plaintiff reported a total of 1.88 tons of SARA

reportable emissions for 2006 and 1.70 tons of SARA reportable emissions for 2007. SARA

reportable are a subset of VOC emissions and are essentially a reporting of the plant’s hazardous

emissions for the year. If one adopts a reasonably conservative assumption that the SARA

reportable are 25% of the total plant VOC emissions, the plant’s VOC emissions would be 7.52

tons for 2006 and 6.8 tons emissions for 2007. The average for the two years is 7.16 tons. This is

only a 2.4% deviation from the Plaintiff’s July 14, 2014 revised Application for Certification of



AC INTERESTS, L.P. FORMERLY
AMERICAN COATINGS, L.P. v. TCEQ                      8
VOC Emission Credits of 7.33 tons. Therefore, Plaintiff’s site did not exceed ten tpy of VOC

emissions for either 2006 or 2007 and was not subject to the reporting requirements under

§101.10(a)(2).

       A line item for ALL COATINGS AND RELATED PRODUCTS was referenced in

Appendix 1, Sheet 12 - Summary of TCEQ Area Source Controls and Emission Reductions.

(Houston-Galveston 1-Hour Ozone Nonattainment Area, 2004 Rate of Progress Demonstration

Calculation Spreadsheet, HGA_ROP_Appendix1_update092304_Stars). The reference was as

follows:

                                                              VOC Reductions (tons per day)
              CATEGORY WITH RULES                                    Calendar Year
                                                      1990        2002          2005          2007
 AUTO REFINISHING                                     0.30         0.31         0.32           0.32
 FACTORY FINISHED WOOD                                0.00         0.14         0.15           0.15
 WOOD FURNITURE                                       0.00         0.30         0.31           0.32
 METAL FURNITURE                                      0.00         0.08         0.08           0.08
 METAL CANS                                           0.01         0.01         0.01           0.01
 METAL COILS                                          1.02         1.04         1.08           1.11
 MACHINERY & EQUIPMENT                                0.66         0.67         0.69           0.71
 MISC. MFG.                                           0.00         0.38         0.39           0.40
 SURFACE CLEANING                                     2.16         2.20         2.27           2.34
 PETROLEUM DRY CLEANERS                               0.00         6.82         7.05           7.25
 ALL PERSONAL CARE PRODUCTS                           0.00         6.12         6.33           6.51
 ALL HOUSEHOLD PRODUCTS                               0.00         4.06         4.19           4.31
 ALL AUTOMOTIVE AFTERMARKET PRODUCTS                  0.00         2.62         2.71           2.78
 ALL COATINGS AND RELATED PRODUCTS                    0.00         6.90         7.13           7.33
 ALL ADHESIVES AND SEALANTS                           0.00         1.03         1.07           1.10
 ALL FIFRA RELATED PRODUCTS                           0.00         1.88         1.94           2.00
 MISC. PRODUCTS                                       0.00         2.21         2.29           2.35
 CUTBACK ASPHALT                                      0.01         0.01         0.01           0.01
 VEHICLE REFUELING - STAGE II                         0.00         9.02         9.32           9.59
 TANK TRUCK UNLOADING - STAGE I                       0.00        10.41         10.76         11.06
 TANK TRUCKS IN TRANSIT                               0.00         0.09         0.09           0.09
 MUNICIPAL LANDFILLS                                  0.00         4.50         4.65           4.78


AC INTERESTS, L.P. FORMERLY
AMERICAN COATINGS, L.P. v. TCEQ                 9
 TOTAL                                                   4.16        60.79        62.83        64.62



      The first six paragraphs of (this) Article VIII.A explain clearly why the Plaintiff’s 2006

and 2007 VOC emission were 7.88 tons and 6.79 tons, respectively, rather than the originally

reported that the site-wide VOC emissions of 22.997 tons and 19.679 tons, respectively. The

primary reason for the difference was that the non-VOCs acetone and ammonia were erroneously

included in the previously submitted plant-wide VOC emission rate calculations. In their letter

of November 19, 2014, the TCEQ completely discounted this explanation in part of their denial

of this request for emission credits when they stated:

      The emissions data provided for the 2006 and 2007 baseline years contradicts the

      information that was provided in your previous Form EC-1 submissions as well as

      the retroactive 2006 and 2007 emissions inventory questionnaires. Specifically,

      American Coatings originally reported that the site-wide volatile organic compound

      (VOC) emissions were 22.997 tons and 19.679 tons in 2006 and 2007, respectively;

      however, the most recent Form EC-1 provides the actual VOC emissions as 7.88 tons

      and 6.79 tons, respectively. In accordance with 30 Texas Administrative Code (TAC)

      §101.302(c)(A), the reduction must be quantifiable and real. Due to the conflicting

      information that has been provided, the quantification of the VOC emissions from

      the American Coatings’ site is questionable and it cannot be determined that the

      reported emissions accurately represent the actual VOC emissions from the

      American Coatings’ site during the 2006 and 2007 baseline years.

      Later in their letter of November 19, 2014, the TCEQ goes on to state: “Due to the

contradictory emissions information provided in the applications, it cannot be determined if



AC INTERESTS, L.P. FORMERLY
AMERICAN COATINGS, L.P. v. TCEQ                     10
Plaintiffs was an area source or a point source that failed to report to the TCEQ point source

emissions inventory (EI).”

      Plaintiff believes they have provided more than an adequate explanation of the discrepancy

in emissions and requests that the TCEQ accept Plaintiff’s 2006 and 2007 VOC emissions of 7.88

tons and 6.79 tons, respectively. Additionally, the TCEQ processes thousands of air permit

applications in various forms each year. In this attorney’s 45 year experience, the majority of the

applications experience some type of emission calculation revision between the original

application submittal and the permit issuance. Again, this attorney, in his experience, has never

heard of a case where a permit has been denied because of revised air emission estimates.

B.      TCEQ SIP versus TCEQ Regulation Emissions Inventory Reporting Requirements

        Plaintiff was unaware of the EI reporting requirements and cites the HGB 1997 Eight-

Hour Ozone Nonattainment Area Reasonable Further Progress (“RFP”) State Implementation

Plan (SIP) Revision adopted on May 23, 2007 as a cause for failure to report. Specifically, the

SIP narrative states that the TCEQ will mail an annual EI questionnaire to sources subject to the

reporting requirements under §101.10. The SIP is an enforceable plan developed at the state level

that explains how the state will comply with air quality standards according to the Federal Clean

Air Act. Under the U.S. Supreme Court’s Chevron doctrine (467 U.S. 837; Chevron U.S.A., Inc.

v. Natural Resources Defense Council, Inc. (No. 82-1005); June 25, 1984), the aforementioned

SIP narrative becomes equivalent to TCEQ regulations. The Supreme Court held that “The EPA's

plantwide definition is a permissible construction of the statutory term ‘stationary source.’”


      Later the opinion went on to state:


      As previously noted, prior to the 1977 Amendments, the EPA had adhered to a plantwide

      definition of the term "source" under a NSPS program. After adoption of the 1977


AC INTERESTS, L.P. FORMERLY
AMERICAN COATINGS, L.P. v. TCEQ                          11
      Amendments, proposals for a plantwide definition were considered in at least three formal

      proceedings.


      In January, 1979, the EPA considered the question whether the same restriction on new

      construction in nonattainment areas that had been included in its December, 1976, Ruling

      [p854] should be required in the revised SIP's that were scheduled to go into effect in July,

      1979. After noting that the 1976 Ruling was ambiguous on the question "whether a plant

      with a number of different processes and emission points would be considered a single

      source," 44 Fed.Reg. 3276 (1979), the EPA, in effect, provided a bifurcated answer to that

      question. In those areas that did not have a revised SIP in effect by July, 1979, the EPA

      rejected the plantwide definition; on the other hand, it expressly concluded that the plantwide

      approach would be permissible in certain circumstances if authorized by an approved SIP. It

      stated:


      Where a state implementation plan is revised and implemented to satisfy the requirements of

      Part D, including the reasonable further progress requirement, the plan requirements for

      major modifications may exempt modifications of existing facilities that are accompanied by

      intrasource offsets, so that there is no net increase in emissions. The agency endorses such

      exemptions, which would provide greater flexibility to sources to effectively manage their

      air emissions at least cost.


      In April, and again in September, 1979, the EPA published additional comments (emphasis

      added) in which it indicated that revised SIP's could adopt the plantwide definition of source

      in nonattainment areas in certain circumstances, 44 FR at 20372, 20379, 51924, 51951, and

      51958 (1979).

      This is clearly a case of the court using a non-regulatory citation to modify a regulatory citation. In

terms of public notice, the Texas SIP rises to at least the level of a Federal Register notice. Therefore,



AC INTERESTS, L.P. FORMERLY
AMERICAN COATINGS, L.P. v. TCEQ                          12
Plaintiff believes that its construction of the above described SIP’s modification of the TCEQ’s Emission

Inventory regulation is correct.

      Coincidentally, Justice Stevens’ opinion stated, “We hold that the EPA's definition of the term

"source" is a permissible construction of the statute which seeks to accommodate progress in reducing air

pollution with economic growth.” This is precisely one of the Plaintiff’s goals in its application for

emission credits.


      At the state level, the Texas Administrative Procedure Act (APA) defines a rule as follows:

"Rule" (See TEX. GOV'T CODE § 2003(6)):

      (A) means a state agency statement of general applicability that:

      (i) implements, interprets, or prescribes law or policy; or

      (ii) describes the procedure or practice requirements of a state agency;

      (B) includes the amendment or repeal of a prior rule; and

      (C) does not include a statement regarding only the internal management or

      organization of a state agency and not affecting private rights or procedures.'

      The statement described in the first paragraph of Article VIII.B meets the elements of a

rule as described in TEX. GOV'T CODE § 2003(6). Additionally, the statement has been

subjected to public notice and comment as part of the Houston-Galveston-Brazoria (HGB)

Reasonable Further Progress (RFP) State Implementation Plan (SIP) Revision for the 1997 Eight-Hour

Ozone Standard on page 2-1. This plan was proposed on September 23, 2009 and adopted on March 10,

2010. The commission conducted public hearings on the plan in Houston on October 28, 2009 at 2:00

p.m. and 6:00 p.m., and in Austin on October 29, 2009 at 2:00 p.m. During the comment period, which

closed on November 9, 2009, the commission received comments from the Clean Air Institute of Texas

(CAIT), KIDS for Clean Air (KIDS), the Sustainable Energy and Economic Development (SEED)

Coalition, the United States Environmental Protection Agency (EPA), and one individual. In addition,


AC INTERESTS, L.P. FORMERLY
AMERICAN COATINGS, L.P. v. TCEQ                        13
CAIT, KIDS, SEED, and one individual also incorporated by reference any comments submitted by

Environmental Defense (ED) and/or the Sierra Club; however, no comments were received from either

ED or the Sierra Club concerning the HGB RFP SIP revision. Also, the plan received EPA approval and

was published in the Federal Register on January 2, 2014. (79 FR 51).

      The statement described in the first paragraph of Article VIII.B was also on Page 2-1 of the

2007 HGB 1997 Eight-Hour Ozone Nonattainment Area RFP SIP Revision, which was subject

to public notice and comment. This plan was proposed on December 13, 2006 and adopted on May 23,

2007. The plan received EPA approval and was published in the Federal Register on April 22,

2009. (74 FR 18298). Prior to that, the statement described in the first paragraph of Article VIII.B

was also on Page 2-1 of the SIP Revision: HGB One-Hour Ozone Post 1999 ROP, October 27,

2004, which was subject to public notice and comment. This plan was proposed on June 23, 2004

and adopted on October 27, 2004. The plan received EPA approval and was published in the

Federal Register on February 14, 2005. (70 FR 7407).

      However, Plaintiff’s argument in this regard was completely discounted in the TCEQ’s

November 19 letter.

C.      Area Source Status of Plaintiff

        Plaintiff is not “an account which meets the definition of a major facility/stationary

source, as defined in §116.12 of this title (relating to Nonattainment Review Definitions)”

therefore, it is an area source under §101.300(3). The document Revisions to the State

Implementation Plan (SIP) for the Control of Ozone Air Pollution Houston-Galveston-Brazoria

Non-Attainment Area Reasonable Further Progress SIP dated May 23, 2007, on Page 2-1 states:

“ 2.2.1 Emissions Inventory Development Point source emissions and industrial process

operating data are collected annually from sites that meet the reporting requirements of 30 Texas

Administrative Code, §101.10. To collect data, the commission mails EI Questionnaires
AC INTERESTS, L.P. FORMERLY
AMERICAN COATINGS, L.P. v. TCEQ                        14
(EIQs) to all sources identified as meeting these reporting requirements. (emphasis added).

Page 2-3 of the referenced document also states: “2.3 AREA SOURCES 2.3.1 Emissions

Inventory Development Area sources are commercial, small-scale industrial and residential

sources that use materials or operate processes that can generate emissions. Area sources are too

small to meet the reporting criteria for major point sources … Area sources can be …hydrocarbon

evaporative emissions …. Examples of evaporative sources include … industrial coatings,…”

      The TCEQ Emissions Inventory program as it exists today began with the submittal of the

calendar year 1990 emissions inventory in late 1991. These dates coincide with the signing of the

Federal Clean Air Act amendments in late 1990 by President George Bush. This attorney was the

Technical Department manager of the Houston Regional office of the old Texas Air Control

Board (“TACB”) during this period. During the emissions inventory development phase in early

1991, this attorney (he was not an attorney at the time) was requested to provide a listing of

medium sized sources, which he believed should be required to submit an emissions inventory

and which were located in the HGB area. The TACB Austin Emissions Inventory group requested

the undersigned attorney to provide this list because they knew that he was in charge of all

inspection activity in the Houston Region and they, the EI group, had no idea who, other than the

obvious very large sources, to send an Emissions Inventory request. Plaintiff’s plant could not

possibly have been on the list, because the company did not exist as a TACB account at that time.

      Most area sources on TCEQ’s current emissions inventory accounts list are listed because

either (1) their names were submitted as part of this original 1991 survey and voluntarily

continued to submit an Emissions Inventory or (2) they were originally major sources, which

have subsequently become area sources. Plaintiff’s plant later became a TACB account, when

they applied for an air permit in 1993. For this reason alone, Plaintiff’s plant should have been



AC INTERESTS, L.P. FORMERLY
AMERICAN COATINGS, L.P. v. TCEQ                    15
included in the TCEQ’s Emissions Inventory database, because the TCEQ database should have

been set up to send newly permitted sources an emissions inventory request.

   Plaintiff believes the area source estimates used in the SIP cover all area sources in the HGB

non-attainment area. This includes area sources, who the commission did not mail EI

Questionnaires (EIQs) to as sources identified as meeting the EI reporting requirements. The

reasoning is that it would be reasonably foreseeable that the commission would not identify (that

is, it would overlook) some area sources in the HGB area, which technically met the EI reporting

guidelines. There are a number of such sources in the HGB non-attainment area. These likely

have been missed because of one or more of the following reasons:

   1. The EI database did not search the Permits database for sources with VOC emissions of

       between 10 and 25 tons per year, which were not in the EI database; and/or

   2. The Region 12 office did not have the manpower to locate and inspect all sources with

       VOC emissions of between 10 and 25 tons per year, and/or

   3. Pursuant to TCEQ’s own studies, there are a number of sources in the HGB area with

       VOC emissions of between 10 and 25 tons per year, which are not in the EI database, and

       in fact, the SIP area source inventory has been modified to account for these sources.

   The Plaintiff’s plant ten-digit source classification code (SCC) appears to be 2460500000,

which is for All Coatings and Related Products within a Consumer/Commercial category. Based

on a TexAER system query, a file named “ams.TX_05.area05_b8.hgbpa_04km_8co” is a 2005

estimate of daily area source emissions for the eight-county HGB area. The emissions are

reported by five-digit county FIPS code (beginning with 48 for Texas) and ten-digit SCC. The

total volatile organic compounds (VOC) emission estimates for the 2460500000 SCC is 6.67 tons

per day (“tpd”). The five-digit pollutant code of 43104 is for VOC. After several iterations of



AC INTERESTS, L.P. FORMERLY
AMERICAN COATINGS, L.P. v. TCEQ                    16
computer processing, the 2005 level of 6.67 tpd becomes 6.88 tpd of VOC for the 2006 SIP. To

summarize, the 2006 area source emission estimates for the Houston-Galveston ozone non-

attainment area SIP modeling for the 2460500000 SCC is 6.88 tpd of VOC. Plaintiff contributed

about 0.052 tpd of this amount.

     Plaintiff’s plant is, therefore, included in the agency emissions inventory under the area

source category.

     Later in their letter of November 19, 2014, the TCEQ goes on to state: “In any case, no

facility-specific emissions data was reported to the TCEQ point source EI for the year relied upon

in the SIP. …therefore, it is not possible to determine if the emission reduction is surplus as

required in §101.302(c)(1)(A).”

     We believe this rationale is false because:

     1. Plaintiff has demonstrated in its July 21, 2014 emission credit application that it is an area

        source and it is, therefore, included in the agency emissions inventory under the area

        source category.

     2. Plaintiff’s plant later became a TACB account, when they applied for an air permit in

        1993. For this reason, Plaintiff’s plant should have been included in the TCEQ’s

        Emissions Inventory database and should have been mailed an emissions inventory

        request by the TCEQ.

     3. Plaintiff’s industry was prescribed as an area source in the SIP, and Plaintiff’s plant

        emitted less than one percent of the total allocation for that industry.

D.      Plaintiff’s Implied Violation(s) of TCEQ Regulation(s) by TCEQ

        Plaintiff generally denies that it has violated any TCEQ regulation. Plaintiff submitted

documentation to the TCEQ with its revised emission credit application on July 21, 2014, which



AC INTERESTS, L.P. FORMERLY
AMERICAN COATINGS, L.P. v. TCEQ                       17
clarified that Plaintiff was an area source and, therefore, not subject to Emissions Inventory

reporting requirements of 30 TAC §101.10.

       Additionally, the TCEQ issues thousands of air permits, which contain the clause

“acceptance of the permit by the applicant constitutes an acknowledgment and agreement that

the permit holder will comply with all rules, regulations, and orders of the commission….” In

this attorney’s experience, many of these permits, if not the majority, experience some type of

rule violation. This attorney, in his experience, has never heard of a case where a permit has been

denied because of a violation of emissions inventory requirements (30 TAC §101.10).

E.     Plaintiff Did Not Request To Void Permit Number 22490

       Plaintiff did not request to void Permit Number 22490 as required by 30 TAC §101.302,

because Plaintiff had previously committed to voiding the permit when it had received assurances

from TCEQ that the application for emission credits would be approved. From the record, it is

obvious that no such approval has been forthcoming. Therefore, Plaintiff is correct in not voiding

the permit until it is assured that such approval will be granted. This is a procedural matter, which

can be easily remedied at the appropriate time.

IX. CONCLUSION

       In conclusion, Plaintiff contends the decision by TCEQ to deny Plaintiff’s application for

certification of emission credits.is fatally flawed and in error for the reasons set forth herein.

       WHEREFORE, PREMISES CONSIDERED, Plaintiff requests that the Commission be

cited and required to answer and appear herein, that a hearing be held, and that on final hearing

hereof, Plaintiff have judgment of the Court as follows:

I.     Reversing and vacating the decision of the Commission and remanding the matter back

to the Commission for further consideration and proceedings; and



AC INTERESTS, L.P. FORMERLY
AMERICAN COATINGS, L.P. v. TCEQ                       18
2.      Awarding Plaintiff costs incurred together with all other relief to which Plaintiff may be

entitled.


Respectfully submitted,


                                              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: /s/_Bill Smalling__
                                              December 10, 2014__________________
                                              C. William Smalling
                                              State Bar No. 24075086
                                              bsmalling@billsmallinglaw.com
                                              Attorneys for Plaintiff
.




AC INTERESTS, L.P. FORMERLY
AMERICAN COATINGS, L.P. v. TCEQ                     19
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 this

the 16th day of December, 2014.


       (1) The Commission is an agency of the State of Texas. Service on the Commission may

be accomplished by delivering a copy of this instrument to Richard Hyde, P.E., Executive

Director of TCEQ, at 12100 Park 35 Circle, Austin, Texas, 78753, pursuant to the Texas Clean

Air Act, TEX. HEALTH & SAFETY CODE § 382.032.

       (2) The TCEQ Executive Director, represented by Caroline Sweeney, P.O. Box 13087,

MC-218, Austin, Texas, 78711-3087.




AC INTERESTS, L.P. FORMERLY
AMERICAN COATINGS, L.P. v. TCEQ                     20
                   THE LAW OFFICE OF C. WILLIAM SMALLING, PC
                        1700 Post Oak Boulevard, 2 BLVD Place, Suite 600
                                     Houston, Texas 77056
                              OFC (713)513-7153 FAX (866)738-0042
                                       December 16, 2014

Mr. Richard Hyde, P.E.
Executive Director (MC-109)
Texas Commission on Environmental Quality
12100 Park 35 Circle
Austin, TX 78753

VIA HAND DELIVERY


Re:    AC Interests, L.P. formerly American Coatings, L.P.’s Original Petition; PLAINTIFF v.
       Texas Commission on Environmental Quality, DEFENDANT
       In the District Court of Travis County, Texas.

Dear Mr. Hyde:

Please see attached Plaintiff's Original Petition in the above matter. Please return a file-stamped
copy of each to me via my courier.

A copy of the enclosures is being forwarded to all parties of interest as set forth below. Thank
you for your assistance in this matter.

Sincerely,

/s/Bill Smalling

Bill Smalling, LL. M., Esq.
Attorney at Law, SBN 24075086
Enclosures
BSm/dm

Cc:      Mr. Jim Morrison, AC Interests, LP.




ENCLOSURES




AC INTERESTS, L.P. FORMERLY
AMERICAN COATINGS, L.P. v. TCEQ                     21
                                                                  2/19/2015 9:17:09 PM
CAUSE NO. D-1-GN-14-005160_                                                            Velva L. Price
AC INTERESTS, L.P.'s RESPONSE TO TCEQ's                                               District Clerk
                                                                                      Travis County
RULE 91a MOTION TO DISMISS
                                                                                   D-1-GN-14-005160

                       CAUSE NO. D-1-GN-14-005160

    AC INTERESTS, L.P. FORMERLY                § IN THE DISTRICT COURT
    AMERICAN COATINGS, L.P.                    §
    Plaintiff                                  §
    v.                                         § OF TRAVIS COUNTY, TEXAS
                                               §
    TEXAS COMMISSION ON                        §
    ENVIRONMENTAL QUALITY,                     § _53rd JUDICIAL DISTRICT
    Defendant                                  §

PLAINTIFF AC INTERESTS, L.P.'s RESPONSE TO DEFENDANT TEXAS
COMMISSION ON ENVIRONMENTAL QUALITY'S RULE 91a MOTION
                        TO DISMISS

TO THE HONORABLE JUDGE OF SAID COURT:

      COMES NOW, AC INTERESTS, L.P. ("Plaintiff) and files this its

Response to Defendant Texas Commission on Environmental Quality's Rule 91a

Motion to Dismiss ("Response"). Plaintiff asks the court to deny Defendant's

motion to dismiss and retain Plaintiffs suit on the Court's docket. In support of this

filing, Plaintiff would respectfully show the Court as follows:

                                 INTRODUCTION

       1. Plaintiff is AC INTERESTS, L.P. Defendant is the Texas Commission on

Environmental Quality ("TCEQ" or the "Commission").

      2. This lawsuit arises out of a decision by TCEQ to deny Plaintiff's

application for certification of emission credits. The TCEQ's action was taken

"under authority delegated by the executive director of the TCEQ" and signed by

Mr. Steve Hagle, P.E., Deputy Director Office of Air, Texas Commission on

                                           1
CAUSE NO. _D-1-GN-14-005160_
AC INTERESTS, L.P.'s RESPONSE TO TCEQ's
RULE 91a MOTION TO DISMISS

Environmental Quality in a letter dated November 19, 2014. This letter was in

response to Plaintiffs revised Application for Certification of Emission Credits

(Form EC-I) received by the TCEQ on July 23, 2014. The original Form EC-1 was

received by the TCEQ on October 17, 2013, with revisions received on November

13, 2013, and April 8, 2014. Substantial rights of Plaintiff have been prejudiced

because the decision is in violation of statutory provisions, is in excess of the

Commission's statutory authority, and is arbitrary and capricious. Because Plaintiff

met the burden of proof that the application for certification of emission credits

complies with all legal requirements, the application should have been granted by

TCEQ. Instead, the application for certification of emission credits was denied.

Plaintiff is seeking judicial review of this decision by TCEQ and is requesting that

it be reversed by this Court.

3. A Response was filed in this proceeding on February 19, 20 15.

4. This Court has subject-matter jurisdiction over Plaintiffs suit and therefore

should retain the suit on the Court's docket and deny Defendant's motion.

                                       FACTS

5.    On December 10, 2014, Plaintiff electronically filed its Original Petition

against the Texas Commission on Environmental Quality ("TCEQ" or the




                                           2
CAUSE NO. _D-1-GN-14-005160_
AC INTERESTS, L.P.'s RESPONSE TO TCEQ's
RULE 91a MOTION TO DISMISS

"Commission") with the Travis County District Clerk. On December 12. 2014, a
                                                                        1
copy of the Original Petition was served on Defendant.

          6.      Plaintiffs application for certification of emission credits was

administratively denied "under authority delegated by the executive director of the

TCEQ" and signed by Mr. Steve Hagle, P.E., Deputy Director Office of Air, Texas

Commission on Environmental Quality in a letter dated November 19, 2014. This

letter was in response to Plaintiffs revised Application for Certification of

Emission Credits (Form EC-I) received by the TCEQ on July 23, 2014. The

original Form EC-1 was received by the on October 17,2013, with revisions

received on November 13, 2013, and April 8, 2014. This lawsuit was filed on the

basis of two assumptions. The first assumption is that pursuant to 30 TAC

§50.131(c)(5) the Executive Director was delegated authority to take actions on

behalfofthe commission under 30 TAC Chapter 101. The second assumption is

that Mr. Hagle's letter constitutes fmal administrative action by the TCEQ. One or

both assumptions may in fact be false. A strict reading of30 TAC §50.131(c)(5)

indicates that the Executive Director was not delegated authority to take actions on

behalfofthe commission under 30 TAC Chapter 101. Additionally, Mr. Hagle's

letter does not constitutes final administrative action by the TCEQ, because any



1
    Plaintiff asks the Court to take judicial notice of its records to ascertain these facts.
                                                      3
CAUSE NO. _D-1-GN-14-005160_
AC INTERESTS, L.P.'s RESPONSE TO TCEQ's
RULE 9la MOTION TO DISMISS

action taken by a Deputy Director is appealable to the Executive Director and then

likely in this case to the commission. Nonetheless, in the event both assumptions

are true, Plaintiff seeks judicial review of the decision by TCEQ in this matter

pursuant to the Texas Commission on Environmental Quality, TEX. WATER

CODE §5.351 and Texas Clean Air Act, TEX. HEALTH & SAFETY CODE§

382.032(a). Notice was provided to the Executive Director ofTCEQ on December

12, 2014, two days after the Original Petition was filed with the Travis County

District Court, when a true and correct copy of Plaintiffs Original Petition was

served on the Executive Director via hand delivery.

7.    Plaintiff attaches an affidavit to this Response to establish facts not apparent

from the record and incorporates that affidavit, all related factual information, and

attachments to that affidavit by reference. See Attachment 1, attached hereto and

incorporated herein for all purposes.

                                    ARGUMENT

8.    Defendant had actual knowledge that the suit had been filed as of December

12, 2014, when a copy of the Original Petition was served on the Executive

Director of the Commission. Additionally, pursuant to TEX. WATER CODE

§5.353, there is a one year time limit on service of process: "If the plaintiff does

not secure proper service of process (pursuant to §5.3 51) or does not prosecute his

suit within one year after it is filed, the court shall presume that the suit has been

                                            4
CAUSE NO. _D-1-GN-14-005160_
AC INTERESTS, L.P. 's RESPONSE TO TCEQ's
RULE 91a MOTION TO DISMISS

abandoned." TEX. WATER CODE §5.351 is controlling in this case because it

was cited prior to TEX. HEALTH & SAFETY CODE§ 382.032(a) in the original

pleading.

9.    Plaintiff contends that the service of citation provisions of the TEX.

HEALTH & SAFETY CODE§ 382.032(c) violate the open courts provision of the

Texas Constitution by unreasonably restricting access to the courts by denying it

rights to due process and equal protection of the law as guaranteed it by the

fourteenth amendment of the United States Constitution. Further, it is Plaintiff

contended that§ 382.032(c) violates the equal protection guarantee, article I,

section 3, and the due process guarantees, article I, section 13, and article I, section

19, of the Texas Constitution. The Texas Constitution contains two separate due

process provisions. Article I, section 19, is the traditional due process guarantee,

which states: "No citizen of this state shall be deprived of life, liberty, property,

privileges or immunities, or in any manner disfranchised, except by the due course

of the law ofthe land." Article I, section 13, provides: "Excessive bail shall not be

required, nor excessive fmes imposed, nor cruel or unusual punishment inflicted.

All courts shall be open, and every person for an injury done him, in his lands,

goods, person or reputation, shall have remedy by due course of law." This

provision is sometimes referred to as the "Open Courts Provision," and is a due



                                           5
CAUSE NO. _D-1-GN-14-005160_
AC INTERESTS, L.P.'s RESPONSE TO TCEQ's
RULE 9la MOTION TO DISMISS

process guarantee. 2 Both provisions of the Texas Constitution have their origin in

Magna Carta.

          TEX. WATER CODE §5.353 takes these concepts into account when it

imposes a one year time limit on service of process. TEX. HEALTH & SAFETY

CODE§ 382.032(d) allows the Plaintiff after receiving due notice to "show good

and sufficient cause for the delay." On December 10, 2014, TCEQ proposed rules,

which among other things repeal provisions for generating credits from area and

mobile sources and for use by mobile sources. Also, on December 10,2014,

Plaintiff electronically filed its Original Petition against the Texas Commission on

Environmental Quality ("TCEQ" or the "Commission") with the Travis County

District Clerk. 3 As stated in Paragraph 6, in a letter dated November 19, 2014, the

TCEQ Deputy Director denied AC Interest's application for emission credits. This

letter was in response to Plaintiffs revised Application for Certification of

Emission Credits (Form EC-1), which was received by the TCEQ on July 23, 2014.

On or about November 21, 2014, the Deputy Director submitted the above

referenced rule proposal to repeal emission credits for area sources to the

commission. In this submission to the commission, the Deputy Director requested

that the commission approve hearings to consider the rule change. After receiving


2
    Hanks v. City ofPort Arthur, 121 Tex. 202,48 S.W.2d 944, 945 (1932).
3
    Plaintiff asks the Court to take judicial notice of its records to ascertain these facts.
                                                      6
CAUSE NO. _D-1 -GN-14-005160_
AC INTERESTS, L.P.'s RESPONSE TO TCEQ's
RULE 91a MOTION TO DISMISS

the TCEQ' s denial letter dated November 19 (which was postmarked November

21 ), the Plaintiffs attorney sensed that the TCEQ was about to propose the rule

changes, which would repeal emission credits for area sources. 4 Therefore, the

Plaintiffs attorney hurriedly assembled the pleading upon which this response is

based. The rationale for this was that the Plaintiffs attorney theorized that the

"new" rule would be used by the TCEQ to confuse the court into believing that the

emission credit rules flatly deny emission credits to area sources. In fact, the "old"

rules (the rules prior to the December 10 proposal) expressly allow emission

credits to be claimed by area sources. Fortunately, Plaintiffs attorney was able to

submit the pleading on the same date as the TCEQ rule change was approved by

the commission to go to hearing (December 10, 2014). On December 12, 2014, the

Plaintiffs attorney was able to hand deliver a true and correct copy of Plaintiffs

Original Petition by serving such on the Executive Director via hand delivery. By

this time, the Plaintiffs attorney was so backlogged with other work that he did not

have time to secure service of process. This should meet the TEX. HEALTH &

SAFETY CODE§ 382.032(d) allowance to "show good and sufficient cause for

the delay." At any rate, TEX. WATER CODE §5.353 prescribes an allowance for

this delay by imposing a one year time limit on service of process.


4
 The Plaintiffs attorney had attended at least one stakeholder meeting relative to the repeal of
area source emission credits.

                                                7
CAUSE NO. _D-1-GN-14-005160_
AC INTERESTS, L.P. 's RESPONSE TO TCEQ's
RULE 91a MOTION TO DISMISS

       Also, the Plaintiffs right of redress outweighed the legislative basis for the

respective ordinances and statute. The right to bring a well-established common

law cause of action cannot be effectively abrogated by the legislature absent a

showing that the legislative basis for the statute outweighs the denial of the

constitutionally-guaranteed right of redress. 5 Certainly AC Interest's reasonable

argument as described in paragraph 11 far outweighs the Texas Clean Air Act§

382.032(c)'s 30 day time limit.

10.    The cited TJFA, L.P. v. TCEQ lawsuit only pleaded a lawsuit under TEX.

HEALTH & SAFETY CODE§ 362.321(c) 6, which requires service within 30

days. Nonetheless, § 362.321 (c) would be subject to the same constitutionality

question as§ 382.032(c) as described in paragraph 9.

11.    On January 27, 2015, TCEQ filed a motion pursuant to Texas Rule of Civil

Procedure (TRCP) 91 a stating "Even taking AC Interests' factual allegations as

true, there is no basis in law for the Court to grant any of the relief AC Interests

seeks by any of its causes of action." TRCP 91a.1 states:

      .... a party may move to dismiss a cause of action on the grounds that it has no
      basis in law or fact. A cause of action has no basis in law if the allegations,
      taken as true, together with inferences reasonably drawn from them, do not
      entitle the claimant to the relief sought. A cause of action has no basis in fact
      if no reasonable person could believe the facts pleaded. 7

5
  Sax v. Voettler, 648 S.W.2d 661 (Tex. 1983).
6 368 S.W.3d 727.
7
  TRCP 91a.1.

                                                 8
CAUSE NO. _D-1-GN-14-005160_
AC INTERESTS, L.P.'s RESPONSE TO TCEQ's
RULE 91a MOTION TO DISMISS



In this case, this rule is not on point because on December 10, 2014, TCEQ

proposed rules, which among other things repeal provisions for generating credits

from area and mobile sources and for use by mobile sources. In the preproposal

phase of the rule making process, several highly reasonable entities or persons 8

made comments paraphrased as follows.

     Area sources should remain in the banking rules and no changes should be
     required. Area sources are an important source of ERCs to the regulated
     community. It is also important that area sources be allowed to earn revenue
     from the generation of emission reductions beyond reduction requirements
     currently in the rules.

     Texas' shale gas reserves and the revitalized domestic oil and gas industry has
     created a long-term supply of competitive natural gas. This has contributed to
     a huge expansion of the Texas Gulf Coast petrochemical and plastics
     manufacturing base. The existing Texas Gulf Coast petrochemical and
     refining infrastructure is also attracting the interest of major global chemical
     companies from outside the U.S.

     A major hurdle for these developments is TCEQ's and EPA's designation of
     the Houston ("HGB") area as a severe ozone nonattainment area (03 NAA).
     Without diverting into great detail, because of the 03 NAA requirements, any
     new or expanded manufacturing plant must offset its new emissions by 130%
     before it can be permitted and constructed. This can be satisfied with ERCs,
     which are generated by permanently reducing emissions at existing sources in
     the HGB area. Pursuant to current TCEQ rules ERCs can be generated by
     large plants or, in theory and according to the rule language, area sources
     committing to facility reductions. The ERC rules clearly allow area sources to
     generate ERCs. The TCEQ staff, to date, has arbitrarily not approved any area
     source ERC applications.
8
 Area Source Emission Reduction Credits (ERCs) ; Submitted by R. Kinnan Golemon, President,
KG Strategies, LLC (Undated). Emissions Banking and Trading Stakeholder Group; Sage
Environmental Consulting, L.P. (April4, 2014). TCEQ Emissions Banking & Trading Program
Stakeholder Group & Future Rulemaldng; Texas Chemical Council (April4, 2014).
                                             9
CAUSE NO. _D-1-GN-14-005160_
AC INTERESTS, L.P.'s RESPONSE TO TCEQ's
RULE 91a MOTION TO DISMISS


     The EPA is proposing to revise the ozone NAAQS to around 70 ppb. This
     revision is scheduled to be finalized in October 2015. This expected event
     makes the timing of the TCEQ staff's proposal to eliminate the potentiality of
     emission credits from area and mobile sources appear curious. The
     combination of the reduction in ozone standard, which simultaneously would
     drive up demand for ERCs and drive down the availability of ERCs, and the
     removal of obtainability of ERCs from area and mobile sources in NAAs will
     cause the price ofERCs in the HGB area to skyrocket. Added to this is the
     likelihood that the prices of crude oil and natural gas will rebound in around
     nine months. When one sums these factors together, the price ofERCs in the
     HGB area may be enough to drive industry out of state and overseas.

      These are arguments that others, in addition to AC Interests, have made to

allow area sources such as AC Interests to obtain emission reduction credits. The

arguments are so reasonable, in fact that the TCEQ does not want to try the

arguments on the merits of the case.




                                        10
  CAUSE NO. _D-1-GN-14-005160_
  AC INTERESTS, L.P.'s RESPONSE TO TCEQ's
  RULE 91a MOTION TO DISMISS

                            CONCLUSION AND PRAYER

  12. Because Plaintiff's pleadings establish the reasonableness of the Plaintiff's

  argument, Plaintiff asks the court to deny Defendant's motion to dismiss and retain

  Plaintiffs suit on the Court's docket. For these reasons, Plaintiff prays that a hearing

  be held and after such hearing the Court deny Defendant's Rule 91a Motion to

  Dismiss and retain Plaintiffs suit on the Court's docket.



  Respectfully submitted,

/s/
  C. William Smalling
  bsmalling@billsmallinglaw.com
  The Law Office of C. William Smalling PC
  1700 Post Oak Blvd., 2 BLVD Place, Suite 600 Houston,
  TX 77056
  Attorneys for AC Interests, L.P.




                                             11
CAUSE NO. _D-1-GN-14-005160_
AC INTERESTS, L.P.'s RESPONSE TO TCEQ's
RULE 9la MOTION TO DISMISS

                         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 this the Jj_th day ofFebruary, 2015.



CYNTHIA WOELK
Assistant Attorney General
State Bar No. 21836525
Cynthia. Woelk@texasattorneygeneral.gov

ANTHONY GRIGSBY
Assistant Attorney General
State Bar No. 08491500
Anthony.Grigsby@texasattorneygeneral.gov

Environmental Protection Div. (MC-066)
P.O. Box 12548
Austin, Texas 78711-2548
Vox: (512) 463-2012
Fax: (512) 320-0911

ATTORNEYSFORTEXAS
COMMISSION ON ENVIRONMENTAL
QUALITY




                                         12
CAUSE NO. _D-1-GN-14-005160_
AC INTERESTS, L.P.'s RESPONSE TO TCEQ's
RULE 91a MOTION TO DISMISS

                      AFFIDAVIT OF C. WILLIAM SMALLING

    STATE OF TEXAS                             §
                                               §
    COUNTY OF FORT BEND                        §

BEFORE ME, the undersigned notary, on this day personally appeared Mr. C.

William Smalling, a person whose identity is known to me. After I administered an

oath to him, upon his oath he said:

1. My name is C. William Smalling. I am over eighteen years of age, of sound

mind, and capable of making this affidavit. The facts stated in this affidavit are

within my personal knowledge and are true and correct.

2. I am a shareholder with The Law Office of C. William Smalling, PC

("TLOOCWS"). I am the attorney of record for AC Interests, L.P., and Plaintiff in

Cause No. D-1-GN-14-005160, AC Interests, L.P. v. Texas Commission on

Environmental Quality.

3. On December 10, 2014, on behalf of Plaintiff, TLOOCWS electronically filed

Plaintiffs Original Petition against the Texas Commission on Environmental

Quality ("Defendant" or the "Commission") with the Travis County District Clerk.

4. On December 12,2014, a copy of the Original Petition was served on

Defendant, the Commission. A true and correct copy of the Original Petition was

served on the Executive Director of the Commission via hand delivery, as shown

by the Commission's file stamp receipt. See Attachment 1, providing a true and


                                          13
CAUSE NO. D-1-GN-14-005160_
AC INTERESTS, L.P.'s RESPONSE TO TCEQ's
RULE 91a MOTION TO DISMISS

correct copy of the Original Petition, except for the handwritten cause number and

judicial district, which were added after service.



FURTHER, AFFIANT SAITH NOT.



/s/C W

C. William Smalling




SUBSCRIBED AND SWORN TO BEFORE ME by Mr. C. William Smalling on

the   (   q   th day of February, 2015, to certify which witness my hand and seal.




                                                                ANAR GHESANI
                                                            My Commission Expires
                                                                April 20, 2016




                                              14
APPENDIX 9

Thu 6/30/2016 3:57 PM
Texas Commission on Environmental Quality tceq@service.govdelivery.com
Emissions Banking and Trading Meeting Announcement


Meetings have been scheduled to discuss and seek input on issues for consideration during
upcoming revisions to the Emissions Banking and Trading (EBT) rules in 30 Texas
Administrative Code Chapter 101, Subchapter H, Divisions 1 and 4. The meetings will focus
specifically on potential rule amendments regarding the generation and use of emission credits
from area and mobile sources.
The meetings are open to the public and anyone interested may attend. Meetings are scheduled
for:
      Houston: July 20, 2016, 2:00 pm, Texas Department of Transportation (TxDOT)
       Auditorium, 7600 Washington Avenue, Houston, TX 77007;
      Dallas-Fort Worth: July 21, 2016, 2:00 pm, The Regional Forum Room at North Central
       Texas Council of Governments, 616 Six Flags Drive, Arlington, TX 76011; and
      Austin: July 25, 2016, 9:30 am, TCEQ Headquarters, Building F, Room 2210, 12100
       Park 35 Circle, Austin, TX 78753.
The current EBT rules allow an area or mobile source to generate emission reduction credits
(ERCs) from emission reductions that are demonstrated to be real, quantifiable, permanent,
enforceable, and surplus to the state implantation plan (SIP) and all applicable rules, and discrete
emission reduction credits (DERCs) from reductions that are real, quantifiable, and surplus to the
SIP and all applicable rules. To address implementation issues associated with generation and
use of area and mobile credits and how the United States Environmental Protection Agency
(EPA) and Federal Clean Air Act (FCAA) requirements are met, the TCEQ is considering
potential new requirements related to:
      the types of sources that would be eligible to generate credits;
      the quantity of credits that could be generated by area and mobile sources;
      the timeframe for credit generation; and
      recordkeeping and reporting.


For more information about these meetings, contact Guy.Hoffman@tceq.texas.gov or
Daphne.McMurrer@tceq.texas.gov.
