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815 Brazos Street, Suite 603 Austin, TX 78701 (512) 381-1111 www.TexasWatch.org

May 16, 2014


House Committee on the Judiciary & Civil Jurisprudence
Attn: Chairman Tryon D. Lewis
Texas House of Representatives
Texas State Capitol, Room E2.120
P.O. Box 2910
Austin, Texas 78768-2910

Re: Written testimony; interim charge on environmental contamination litigation

Chairman Lewis:
Texas Watch is a non-profit, non-partisan citizen advocacy organization that focuses on issues related to
public safety and civil justice. We write today to provide written testimony on your interim charge
concerning environmental contamination litigation and ask that our testimony be considered by the full
committee and included in the record.
In order to ensure our citizens communities are protected from contamination, we respectfully urge
this committee to follow the lead of the Legislature and refrain from taking any steps that would limit
the constitutional right to trial by jury. Approaches that would seek to strengthen the grip of Austin
bureaucrats and undermine local control, consolidate power in the executive branch at the expense of
the judiciary, invade contracts, endanger public safety, or shift costs onto the taxpayer for clean up are
not sound public policy.
Whether the issue is a company intentionally dumping acid and hazardous waste in a West Texas water
supply or underground storage tanks leaching into the groundwater in Harris County, cities and counties
must maintain their right to directly hold wrongdoers accountable through our civil justice system.
A number of efforts were undertaken last session to try to slip through misguided measures that would
benefit negligent industrial actors.
These policies ranged from authorizing the Attorney General to
bigfoot suits initiated by local governments (decimating local control in the process), to limitations on
contingent fee contracts for representation of local governments (invading the freedom to contract), to
limiting all penalties to the slaps on the wrist administered by unelected state bureaucrats (violating the
separation of powers by favoring the executive branch to the exclusion of the judiciary).

See, e.g., HB 3117, HB 3119, CSSB 59 (House Amendment 1), & SB 1385 (House Committee Report, SECTION 18),
Regular Session.
The Legislature wisely rejected these measures and the issue is settled. The methods employed alone
last session are enough to disqualify these measures from reconsideration.
Moreover, local authorities are not asking for in fact they are opposed to changes that undermine
their ability to keep their local communities safe. As a matter of local control, we should empower local
authorities to exercise their prerogative to effectively police the industries that recklessly pollute the
local water supply.
Finally, the effect of legislation of the type considered and rejected last session is to shift the burden
of clean up away from polluting industries and onto local taxpayers. That is hardly sound public policy.
We ask you to support and protect our local communities by recommending that they maintain their
ability to protect their citizens.

N. Alex Winslow Ware V. Wendell
Executive Director Director of Legislative Affairs

cc: Members of the committee
Members of the media

Enclosures (news articles)

Suing Polluters: Texas Again Considers
Curbing County Attorneys

MAY 6, 2014 | 6:30 AM
Dave Fehling / StateImpact

After being the target of intense lobbying that drew criticism in last years Texas legislature,
lawmakers will again hear why big business wants restrictions on local governments that go after
polluters in court. The House Judiciary Committee will take up the issue at a hearing May 16th.

Bills to curtail pollution lawsuits by local governments died in the last legislative session.

I wasnt surprised to see it still out there. Theres an effort to limit cities and actually its been
going on for several years now, said Bennett Sandlin, Executive Director of the Texas
Municipal League.

Sandlin cites cases like one recently in which Ector County sued an oil field services company
after acid was dumped into Odessas sewage system.

This is a situation where cities to protect their water supply occasionally have to go after
polluters who arent being adequately regulated at the state or the federal level, Sandlin told
StateImpact. Cities are not real anxious to do this, its not in their wheelhouse to bring
environmental litigation its just when you have a case like pouring toxic chemicals down a
sewer system, cities feel backed into a corner and in some cases they have to do this.

Counties Hire Private Lawyers

Last year, there was a bill to give the Texas Attorney General the power to settle environmental
lawsuits without the consent of local government. Another tried to restrict local litigation
by banning city and county governments from using private law firms to file the suits.

Harris County is using private lawyers in on-going litigation over a decades-old waste dump
along the San Jacinto River which now involves companies includingWaste Management
Inc. which acquired a company previously liable for the site. The county has used similar tactics
to go after AT&T Services Inc. for underground gasoline storage tanks that leaked.

Big industry says those tactics are an unfair money grab by local governments. Industry groups
say private lawyers will try to inflate their fees by getting big penalties against companies that
may have already agreed to do clean-ups under agreements with state or federal environmental

The states objective is clean up the contamination and make someone else other than the
taxpayers do it, said Steve Minick, VP of Government Affairs at the Texas Association of
if everyone one of those companies can be sued by the local jurisdiction solely to collect money
the state didnt collect(then) no company in their right mind in Texas is going to build their
company on property thats ever been used for commercial industrial purposes, Minick told

One of the States Most Serious Challenges

Those concerns apparently led House Speaker Joe Straus to put the issue back under
consideration, listing it among the interim charges that he wants next years session of the
Texas Legislature to address.

But supporters of local government litigation ask, why?

Lawmakers should not be bringing this up, lobbyists should move on, said Alex Winslow,
Executive Director of Texas Watch, a corporate accountability group. He contends its a case of
big industry wanting the more business friendly state regulators to have the final say in
pollution cases.

Polluters would rather have those bureaucrats in Austin handle these matters than local
authorities that are accountable directly to their communities, said Winslow.

Language limiting county attorney keeps popping up in Lege

By Patricia Kilday Hart and Kiah Collier
Houston Chronicle
May 24, 2013 | 7:00 AM

Call it the Whack-a-Mole bill. Every time Harris County legislative relations director Cathy Sisk
thinks she has killed legislation that would limit the ability of local government to go after
polluters in court, it pops up as an amendment somewhere else.

Wednesday night, the proposal, killed as a stand-alone bill early in the session, made its third
resurrection as an amendment to a conference committee report. Local government lobbyists
spent Thursday trying to undo the damage.

At first, Sisk admired how an unknown individual - most likely a lobbyist - inserted innocuous-
sounding language into legislation that escaped the attention of lawmakers and their staffs. By
Thursday, however, she was a little steamed: "At some point I have to stop congratulating them
and start condemning them for being underhanded and deceptive. It's frustrating because it has
serious consequences."

The latest version of the stealth amendment states that any entity that receives a final order from
the Texas Commission on Environmental Quality in an enforcement action "is not subject to
additional penalties," which local government officials fear will preclude lawsuits for damages.
Harris County officials say the amendment, if passed, could affect a 2011 lawsuit filed on behalf
of Harris County by a Houston law firm against AT&T, alleging the telecommunications
company owned storage tanks on 13 different properties that leached hazardous substances,
including known carcinogens, into the groundwater. Assistant County Attorney Rock Owens,
head of the office's environmental division, said the leaking tanks contaminated county property,
delaying construction projects and costing precious tax dollars to clean up.

That lawsuit is ongoing, but Sisk fears legislative action would leave Harris County taxpayers
stuck paying for the clean-up.

Bennett Sandlin, executive director of the Texas Municipal League, said local governments need
authority to go after polluters in court.

"State agencies can only do so much environmental enforcement," he said. "Houston and others
have felt the need to protect their groundwater."

Rep. Senfronia Thompson, D-Houston, said she mistakenly added the amendment to a bill
because it was presented to her as a "reasonable" way for AT&T "to have finality" on decisions
rendered by the TCEQ. When she realized the sweeping consequences, she asked the House to
reconsider the bill and strip out the language.

On Thursday, Thompson realized she had signed a conference committee report on another bill
with slightly different language that had the same effect.
"I'm devastated," she said. "I'm going to talk to the parliamentarian."

Thompson said busy lawmakers cannot scrutinize every line of voluminous bills.
"We rely on the integrity of individuals," she said. "This is a rare situation where things
mysteriously appear."

The end-of-session work crunch allows for mischief, as most lobbyists are aware.
"This last week, we just read everything," Sandlin said. "It keeps me up at night, worrying if it is
going to show up again."

Adding to the intrigue of this particular amendment, the written explanation of the conference
committee report included key lines that appeared blacked out, or redacted. However, Mary
Camp, director of the Legislative Reference Library, said an "antique scanner," not a sneaky
lobbyist, was to blame.

Late Thursday, a new version of the conference committee report - minus the questionable
language - was being drafted.

According to the TCEQ, there are 45,841 underground storage tanks in Texas and 6,507 in
Harris County. The agency says 26,781 of the tanks are leaking. The average cost of cleanup
runs more than $86,000.

The TCEQ administers programs to register tanks and take care of problematic ones, but Owens
said the effort is "woefully underfunded."

Ector County Suing Oilfield Service Company for
Contaminating Water Supply

Posted: Monday, March 10, 2014 8:47 pm
By Macey Meriggi

Ector County is suing a local service company for contaminating the water supply.

CBS 7 News has obtained the court documents which detail how Roywell Services Incorporated
dumped acid and chemicals into the Odessa sewage system.

On Jan. 30 and Feb. 10, the City of Odessa Water treatment plant detected pollutants in the water
which upset the functioning of the plant. Plant officials noted Xylene was discovered as a
pollutant. An investigation was launched to determine the origin of the pollutant.

Odessa Police Department was tipped off on Feb. 28 that employees at Roywell Services
intentionally dumped hazardous waste directly into a City of Odessa manhole located in their

The investigation revealed that employees used a pump to drain the contents of a lined pit into a
manhole on the property allegedly at the direction of a manager. According to an employee, that
pit contained a mixture of acid, chemicals, and water.

Another employee claims a manager directed a transport truck containing 90 barrels of waste
acid to dump the contents in a lined containment pit. Later, the manager instructed two
employees to dig a ditch to funnel the waste directly into the manhole. One employee told
investigators that the acid was so corrosive that he could see the mixture in the pit bubble and
dissolve caliche rock that he threw into it.

That waste dumped into the drain travelled through both the City of Odessa and unincorporated
parts of Ector County.

According to City of Odessa Public Information Officer Andrea Goodson, the city was fined six
thousand dollars by the Texas Commission of Environmental Quality for having traces of Xylene
in a water sample. Goodson does not believe there was any physical damage done to the system
but the presence of Xylene did put stress on the system.

According to court documents, Ector County seeks anywhere from 200 thousand dollars and up
to one million dollars in monetary relief.

CBS 7 News reached out the Roywell Services Inc. who refused to comment on the situation.