February 23, 2015
HARRIS COUNTY, TEXAS
Attorneys for Harris County have asked for a new trial in
the legal fight over industrial pollution in the San Jacinto River, saying the
judge made numerous errors that prevented them from getting a fair hearing on
their claims.
The motion for a new trial, filed this week, comes two
months after a jury cleared Memphis-based International Paper Co. of any
responsibility for the paper-mill waste that has fouled the river for decades.
Harris County had asked the jury to force International
Paper to pay as much as $25,000 a day from February 1973 to March 2008 for
allowing cancer-causing dioxins to spread into the river from three abandoned
disposal pits along its banks near Channelview.
In the motion, the county claims a series of errors by state
District Judge Caroline Baker prevented the jury from finding the company
liable.
Baker, for example, told jurors that the company did not own
the hazardous waste after it was placed into the pits in 1965 – a reversal of
her rulings on the issue before and during the four-week trial.
International Paper was one of the county’s three targets in
the case. The other two companies – McGinnes Industrial Maintenance Corp. and
Waste Management Inc. – agreed to pay nearly $30 million in damages.
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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."