A creek flowing to the Colorado River turned black. Now the state has sued the alleged polluter.

“A creek flowing to the Colorado River turned black. Now the state has sued the alleged polluter.” was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

ALTAIR – For more than two months, the waters of Skull Creek have flowed black, its surface covered in an iridescent sheen. Yellowed fish skeletons line the pebbled banks of the Colorado River tributary and a dizzying, chemical odor hangs in the air.

The odor is so strong that Julie Schmidt says she can smell it inside her house.

She and her husband bought 10 acres along the creek in December with visions of an idyllic country upbringing for their children, ages 10 and 2. Now, she isn’t sure they should play outside.

“Last summer you could go into the creek behind the house and it was crystal clear. You could play in it, you could fish,” said Schmidt, who moved from nearby Garwood and has lived in Colorado County her entire life. “Now you don’t want to touch it. You pick up a rock, turn it upside down, and it’s completely black.”

Locals and elected officials in this small southeast Texas community near the intersection of Interstate 10 and Texas 71 say the source of the problem is obvious: an oil and gas waste recycling facility near the creek that is owned by Columbus-based Inland Environmental and Remediation. Though Inland has denied wrongdoing, the Texas Attorney General sued the company on Friday — 10 weeks after citizens first began complaining — alleging the company illegally discharged industrial waste into the creek and stored that waste without a permit.

On Tuesday, a state district court in Travis County granted a temporary restraining order against the company and its president, David Polston, saying he must “cease and prevent all discharges of waste” from the site into state waters.

The state’s lawsuit seeks monetary damages of up to $1 million.

The Texas Railroad Commission ordered the facility to stop storing oil and gas waste in 2017 as a result of a bankruptcy court reorganization (the permit was held by Boundary Ventures, a company at the same location that lists Polston as its president and director).

Records obtained by The Texas Tribune show that the Texas Commission on Environmental Quality dispatched inspectors to the facility on Feb. 10 — the same day that Colorado County Judge Ty Prause says he made a formal complaint — and hand delivered a letter two days later demanding that Polston take immediate action to halt the discharge of waste into the creek. The letter described conditions at the facility as an “imminent threat and substantial endangerment to human health and/or the environment.”

But Prause, the county’s chief executive, said the agency left him and other officials in the dark for weeks about the exact origins of the pungent substance and what guidance he should give to his constituents to protect themselves.

“It’s hard to imagine that the state agencies in charge of protecting our environment and natural resources in Texas would not act quicker to tell people that live on this creek whether there’s a threat to their health or their livestock,” said Prause, who oversees emergency response for the county.

While Prause applauded the state’s legal move on Tuesday, he also stressed that the “disaster we are experiencing in Colorado County” is still ongoing and he called on state regulators to take immediate action to halt contamination of the creek. A TCEQ spokesperson declined to comment on the pace of the agency’s response and Polston did not respond to repeated interview requests.

According to the Colorado County Citizen, which first reported on the Skull Creek contamination, the agency referred the case to the attorney general’s office on March 4, but the office did not accept it until April 4.

The attorney general’s office — which swiftly filed lawsuits against two Houston-area chemical companies earlier this month after both caught fire — did not respond to questions about why it waited weeks to take on the Skull Creek case.

The TCEQ gave Polston until Feb. 18 — five working days after it delivered its demand letter — to provide documentation showing it had addressed the situation. The company responded 10 days later that they had complied with the letter’s demands, according to the state’s original petition.

Weeks later, the company claimed that its own water sampling showed the black substance in the creek was a product of “natural sources” such as algae or decomposing animal waste. The company’s reports were sent to various local and state officials, according to Prause.

But a TCEQ toxicology report released last Wednesday said that water samples collected in the creek registered elevated levels of hazardous chemicals associated with oil and gas waste, including xylene, toluene and ethylbenzene. Toluene, a solvent present in paint thinners, glues and nail polish remover, and xylene, another solvent, are both dangerous to inhale.

Inland’s facility is located roughly a quarter-mile from Skull Creek. It accepts various types of hazardous and industrial waste, including oil and flammable and corrosive liquids. It converts the waste into road base, according to its website.

It also describes the plant as “not a disposal facility, it is a true recycling facility” and says it’s “creating a cleaner environment.”

The Railroad Commission said it’s considering fining Inland for failing to plug an oil waste disposal well that was sealed in June 2018. In an April 10 letter from the commission to Prause, the agency said neither the well nor the treatment facility — located on the same property — “should be receiving or disposing waste under the jurisdiction of the RRC.”

“Any information to the contrary should be reported to RRC staff as soon as possible,” wrote Peter Pope, manager of the Railroad Commission’s Site Remediation Section.

“Do something about it”

Since the creek first turned black, Prause said he has fielded constant calls from area landowners asking for information. Residents along the creek draw their water from private wells and are worried about contamination, he said. Prause said the local groundwater conservation district tested a few of them and samples have all come back clean.

For eight weeks, Prause said his requests to TCEQ for more information went unanswered; he said he was told only that an investigation was underway and samples had been taken.

Then, on April 3, representatives from several state agencies — including the TCEQ, the Railroad Commission and the Texas Parks and Wildlife Department — came to the county courthouse, at Prause’s request, for a meeting to discuss the pollution in Skull Creek. Prause called the meeting “chaotic” and said the agencies seemed more concerned about which agency had jurisdiction over the problem than answering questions about the potential threats to citizens’ health.

State Sen. Lois Kolkhorst — a Brenham Republican who represents the area — told The Tribune last week that lawmakers “should review how the relevant state agencies have managed this event, as well as monitor the long-term plan for removing this contamination and prosecuting those responsible to the full extent of the law.

“It is reasonable to not only ask why this event happened, but also to ask how the response to this event by the TCEQ and others could be improved,” she said.

Her concerns were echoed by the Lower Colorado River Authority, a major water supplier that manages the Colorado River. Skull Creek flows into the Colorado near Texas 71; the river eventually empties into Matagorda Bay, a popular spot for recreational fishing and boating.

Bill Lauderback, LCRA’s executive vice president for public affairs, said the agency is “very concerned about the water quality in Skull Creek” and the “apparent lack of adequate regulatory oversight and enforcement.

“While LCRA does not have regulatory authority to address these types of pollution issues, we are actively examining all legal avenues under the Texas Water Code and the Texas Health and Safety Code,” Lauderback said.

Lauderback said the LCRA conducted its own water sampling along the creek and found hydrocarbons present in the creek downstream of the facility but not upstream.

LCRA spokeswoman Clara Tuma said there aren’t any cities or towns downstream from Skull Creek that draw water from the Colorado River. But Prause said ranchers and rice farmers rely on the Colorado to irrigate their fields and water their livestock.

As of Thursday — more than two months after TCEQ received the initial complaints — Skull Creek still flowed black and the odor hanging near it was so potent it could be felt as much as smelled – an overwhelming, headache-inducing stench.

Still, Schmidt — the creekside landowner — said it was mild compared to other days, when it has “burned her nose” and taken her breath away as she makes the short walk between her car and her house. She said she hopes the contamination is cleaned up quickly and whoever caused it is punished.

“We make the joke, ‘Are you going to glow at night?’ because you’ve gotten the water on you,” Schmidt said. “I just wish somebody could figure out where it’s coming from and do something about it.”