Harris County Seeks Accounting for Decades of Pollution

Laced with the poisons of many years of industrial activity, waterways around Houston are considered toxic enough that adults are cautioned not to eat more than 8 ounces of fish or blue crabs taken from them. Pregnant women and children are warned to eat none at all.

For more than half a century, parts of the San Jacinto River, Houston Ship Channel and Galveston Bay have suffered devastating environmental contamination. And for decades, nobody knew for sure who was responsible for dumping what. But in recent years, at least some of the most noxious pollution has been traced to wastewater from a paper mill that was dumped into Houston area waters beginning in 1965.

On Thursday morning, a Harris County district court jury will hear opening statements in a lawsuit filed to wrest penalties from three of the companies allegedly responsible.

The case is far-reaching and unusual because the lead plaintiff is Harris County itself, not state regulators. And the county isn’t asking for traditional damages, such as economic harm. Instead, it is demanding what could amount to billions of dollars in civil penalties from the three companies for violating state water laws. County officials say they were spurred to act because state regulators had not.

“While the corporate entities benefited and parlayed their businesses into ever-larger and more profitable corporate entities,” Harris County lawyers argued in a scathing petition, “their waste materials continued to release silently into the environment exposing people to risk from the dioxin that became more widespread throughout the San Jacinto River, the Upper and Lower Galveston Bay and increasingly distributed throughout the food chain for more than 40 years.”

The case is drawing scrutiny from state legislators and business lobbyists who say local governments shouldn’t be in the business of filing such lawsuits.

“As a representative of over 200 chambers of commerce, I find myself in the ironic position of suggesting that local governments who are acting in this way may want to take a step back and think about it,” Steve Minick, vice president of the Texas Association of Business, told state lawmakers at a committee hearing on environmental litigation in May. “Because I think this is going to have enormous implications for property values, for development initiatives in those urban areas.”

The San Jacinto River and waterways it feeds into, like Galveston Bay, are contaminated with a wide variety of chemicals that likely came from many different industrial operations. But state and local officials say it is clear that some of the worst pollution started in 1965, when International Paper hired McGinnes Industrial Maintenance Corporation (MIMC) to dispose of wastewater from a mill International Paper owned in Pasadena.

Environmental rules were laxer then, the companies say, and no one knew the wastewater contained dioxin, now known to be highly toxic and carcinogenic.

Long-term exposure to dioxin, which was a component of the herbicide Agent Orange, which was used during the Vietnam War, can lead to severe reproductive and developmental problems. In the short term, dioxin exposure can cause skin and liver problems, as well as nausea and vomiting.

In 1982, an entire Missouri town was forced to relocate after high levels of the chemical were found in its soil, apparently after dioxin-laced oil was spread on roads to keep down dust.

MIMC disposed of millions of gallons of dioxin-bearing wastewater a year, either directly into waterways like the San Jacinto or into ponds that eventually drained into public waterways, the lawsuit alleges. The company also built waste pits near a highway crossing on the San Jacinto River just east of Houston, and abandoned them in 1968.

Harris County and state officials say the waste pits, protected only by clay barriers, leaked into the San Jacinto River whenever there was a flood or storm. Subsidence caused by groundwater pumping also caused the waste to continue to enter the river for the next 40 years, the lawsuit says. Those pits are now a federal superfund site.

“Unbelievably, the responsible companies purposefully walked away from their poisonous waste without a backward glance and remained silent for decades — content to let it become someone else’s problem,” Harris County lawyers wrote in their petition.

The companies say they are already paying millions of dollars in cleanup costs into the federal superfund program, and shouldn’t have to pay penalties on top of that. “Such tactics are fundamentally unfair and will do nothing but discourage future cooperative remediation efforts in Harris County,” MIMC’s lawyers wrote in their response to the lawsuit.

MIMC’s lawyers added, “The fundamental allegations are demonstrably false,” arguing that “dioxins are ubiquitous in the environment, particularly in the highly industrialized areas along the San Jacinto River, such that any dioxins detected in the San Jacinto River watershed may have come from a variety of sources.” Natural or manmade events occurring after the waste pits were abandoned that caused dioxin to continue leaking into the river are not MIMC’s responsibility, the company said.

A third defendant, Waste Management, is included in the suit because it acquired MIMC as a subsidiary in 2003. The company says it shouldn’t be held responsible for actions that occurred long before it came on the scene. “The Waste Management defendants had no responsibility for or control over the Site at any time,” wrote the company’s lawyers, noting that it had voluntarily contributed millions of dollars to clean up the superfund site.

Harris County’s lawsuit is somewhat unusual in seeking only civil penalties for violations of state water law. Since 1997, the maximum penalty for violating such laws in Texas has been set at $25,000 a day. Normally, those penalties would be sought by a state enforcement agency — in this case, the Texas Commission on Environmental Quality (TCEQ).

Speaking before lawmakers at the May committee hearing, Minick of the TAB said that if high fines for pollution are justified, they should be sought primarily by the state, not local governments.

“We have a very long track record in this state of trying to get companies to come to the table and voluntarily step up and clean up contamination,” Minick said. “If those companies have any reason to believe that in the end, having done that, they still face the prospect of enormous financial penalties at the local level through enforcement cases, they’re going to stop doing that.”

Some legislators appear receptive to limiting local lawsuits to enforce state regulations. The committee hearing Minick addressed was discussing a directive by Texas House Speaker Joe Straus, R-San Antonio, asking lawmakers to “examine the public policy implications of litigation related to environmental contamination brought by local governments, in particular whether such litigation supports effective remediation.” During the last legislative session, two bills limiting such lawsuits died in committee, beaten back by a lobbyist from Harris County.

TCEQ has joined Harris County’s lawsuit at the county’s request (and as required by law, since the case is about state law violations). And it has supported Harris County’s aggressive pursuit of penalties.

“The reality is that all of the Defendants have a sufficient connection to the waste in the San Jacinto River Waste Pits to impose liability for civil penalties against both of them for disposals, discharges, and/or spills of this waste into or adjacent to the San Jacinto River,” Attorney General Greg Abbott wrote in a court filing on behalf of the agency.

Abbott pointed out that penalties the jury is allowed to award could be as low as $50 a day, resulting in total fines of about $2 million, rather than billions of dollars.

“Since some parking tickets result in a higher fine, Defendants can hardly argue that these provisions are excessive,” Abbott wrote. “The minimum penalty scenario for these Defendants — two million dollars — would not shock the sense of mankind.”

Disclosure: The Texas Association of Business is a corporate sponsor of The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.