Case 4:09-cv-03620 Document 7 Filed in TXSD on 12/17/09 Page 1 of 25

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

CES ENVIRONMENTAL
SERVICES INC.,
Plaintiff,
Case No. 4:09-cv-3620
v. Jury Demanded

CITY OF HOUSTON, et al.,

Defendants.

FIRST AMENDED COMPLAINT

K.A.D. Camara
Texas Bar No. 24062646
Southern District Bar No. 870498
camara@camarasibley.com
Attorney-in-Charge for the Plaintiff

Timothy Paul Nyberg

Texas Bar No. 24070349
nyberg@camarasibley.com
Kent Radford
Texas Bar No. 24027640
radford@camarasibley.com
Camara & Sibley LLP
2339 University Boulevard
Houston, Texas 77005
713-893-7973
713-893-1131 (fax)
Attorneys for the Plaintiff
Case 4:09-cv-03620 Document 7 Filed in TXSD on 12/17/09 Page 2 of 25

Contents
1 The post-TRO denouement of the City’s first termination of
wastewater service 5

2 The City’s second attempt to terminate wastewater service,

this time, based on an illegal permit amendment 6
2.1 The City’s imposition of Endorsement TTO . . . . . . . . . . 6
2.2 Cause of Action — 42 U.S.C. §1983 . . . . . . . . . . . . . . . 10

3 The City’s unconstitutionally vague odor ordinance 11

3.1 The relentless, standardless City odor inspections . . . . . . . 12
3.2 Standardless citizen complaints . . . . . . . . . . . . . . . . . 15
3.3 Odor NOV’s . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.4 Cause of Action — 42 U.S.C. §1983 . . . . . . . . . . . . . . . 18

4 A temporary injunction is appropriate 20

5 Further prayer for relief 22

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Table of Exhibits

Exhibits A–R are attached to the Original Complaint.

Exhibit S: Intentionally Omitted
Exhibit T: Video 1 of the City’s Nuisance Inspections
Exhibit U: Video 2 of the City’s Nuisance Inspections
Exhibit V: Video 3 of the City’s Nuisance Inspections
Exhibit W: Citizen Collected Evidence Information Packet
Exhibit X: City Document Labeled “Report Environmental Violations”
Exhibit Y: December 1 Termination Letter
Exhibit Z: August 18, 2009, Notice of Violation

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COMES NOW CES Environmental Services Inc. and, in addition to

the allegations contained in its Original Complaint (¶¶1–67), which CES
hereby incorporates as though fully set out here,1 complains that:

• the City and Mr. Marcotte are continuing to attempt to terminate

CES’s wastewater service — and, hence, CES’s rights under permits
from the City that entitle CES to wastewater service — without due
process of law, this time by relying on a purported permit amendment
that the City had no legal authority to make;

• the City and its Bureau of Air Quality are subjecting CES to notices of
violation and threatening to subject CES to prosecution and regulatory
fines for violation of an odor ordinance that, as stated and enforced,
gives CES no adequate notice of what conduct is prohibited and vests
in city employees unfettered discretion to harass CES; and

• the City has displayed a special animus and a pattern of lawlessness

toward CES that justifies this Court’s granting a temporary injunction
enjoining the City from enforcing its unlawful amendment to CES’s
wastewater permit, enforcing or issuing notices of violation pursuant
to its unconstitutionally vague odor ordinance, and interfering with
CES’s business in any other way without prior leave from this Court.

1
CES files this First Amended Complaint “as a matter of course” under Rule 15(a)(1).
As amended by the amendments that took effect on December 1, 2009, Rule 15 allows
a party to “amend its pleading once as a matter of course within . . . 21 days after
service of a responsive pleading” “if the pleading is one to which a responsive pleading is

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1 The post-TRO denouement of the City’s

first termination of wastewater service

68. This case began on Halloween, when the City of Houston ter-
minated CES’s wastewater service without prior notice or a pretermination
hearing. The original complaint details how the City sent vans with a police
escort to disconnect CES’s service, see Complaint at ¶1; how the City held a
hearing bereft of the basic features of due process, see id. at ¶13–21; how the
City failed to present any evidence at all of an imminent harm to members
of the public or city employees to justify its emergency shutdown; how the
City’s only witness, Walid Samarneh, admitted that there was no evidence
of any such harm, see id. at ¶21–27; and how CES was forced to apply to
this Court for a temporary restraining order requiring the City to restore
wastewater service immediately, see id. at ¶28–33.
69. At the TRO hearing, the City agreed to restore wastewater ser-
vice. CES withdrew its application for a TRO, but stated that it would
continue to claim damages stemming from the City’s illegal shutdown. The
parties read their agreement into the record. Notwithstanding the City’s
agreement to restore service immediately, the City has since restored ser-
vice to only one of the two sampling points that it disconnected. The City
restored service to sampling point (5), but has not yet restored service to
required.” A complaint is a pleading to which a responsive pleading is required. See Rule
12(a)(1)(A). Defendants The City of Houston and Michael S. Marcotte filed their answer
on December 14. Because CES is filing this First Amended Complaint within 21 days
after December 14, it is entitled to amend its complaint as a matter of course.

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sampling point (1). As a result, CES is able to operate its principal treat-
ment facility, but is subject to a variety of other inconveniences, including,
for example, having no working restrooms except in one building at the rear
of the Griggs Road facility.

2 The City’s second attempt to terminate

wastewater service, this time, based on an
illegal permit amendment

70. On December 1, the City sent a letter to CES stating that it

would terminate wastewater service on December 16, unless CES sought
another administrative hearing by that time. See Ex. Y. The City based
its threatened termination of service on alleged violations of the “City of
Houston Total Toxic Organics (TTO) Limit.” Id. at 2. As the letter explains,
the TTO limit appears “in Endorsement TTO of Industrial Waste Permit No.
9558.” Id. at 2. Permit 9558, including Endorsement TTO, appears at page
17 of Exhibit K to the Original Complaint. Endorsement TTO contains a
list of 103 chemicals and the “limit” that “the summation of all quantifiable
values greater than 0.1 mg/L for any compound listed” must be less than 50
mg/L.

2.1 The City’s imposition of Endorsement TTO

71. Permit 9558 governs wastewater discharge from CES’s primary

waste-processing facility. This permit is the one that corresponds to the

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wastewater service that CES restored after the TRO hearing in November.
Permit 9558 was issued on December 14, 2008, and expires on December 14,
2010. See Ex. K at 1. In January 2009, the City of Houston purported to
amend Permit 9558 to impose the TTO limit in Endorsement TTO. See Ex.
D at 12:18–19. This unilateral amendment was not authorized by the rele-
vant City ordinance and, therefore, constituted the confiscation of property
without due process of law.
72. The City’s ability to modify a permit after it has been issued is
limited by ordinance:

“The department may modify the conditions of any permit from

time to time, as necessary to prevent interference or a pass through
of the sewer system, contamination of sewage sludge or violation
by the city of laws or regulations enacted by the state or federal
government.” Code of Ordinances §47-189(b).2

None of these conditions was present when the City modified Permit 9558 to
add Endorsement TTO.
73. A history of the permit negotiations between the City and CES
is necessary to fully understand the situation. In May 2008, Clyde Smith,
an Environmental Investigator V with the City of Houston, emailed CES
2
A “pass through” is defined as “[a] discharge which exits the POTW into waters of
the United States in quantities or concentrations which, alone or in conjunction with a
discharge or discharges from other sources, is a cause of a violation of any requirement of
the POTWs NPDES or state discharge permit.” Code of Ordinances §47-186.
The “POTW” is a publicly owned treatment work and is defined as “[a]ll city wastew-
ater treatment facilities, wastewater lift stations, and all wastewater collection and/or
conveyance systems. The term is synonymous with ‘sanitary sewer system’ below.” Code
of Ordinances §47-186.
An “NPDES permit” is “[a] permit issued to the POTW pursuant to section 402 of the
Clean Water Act.” Code of Ordinances §47-186.

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a proposed endorsement to CES’s wastewater-discharge permits for CES’s

review and comments. That email contained a list of chemicals that the City
proposed to regulate along with the amount of each chemical that would be
permitted. CES responded, in part, by stating that some of the chemicals
listed presented no danger and that CES would prefer a much higher limit.
74. CES asked for a meeting with the City to discuss the proposed
modification. As a result of this meeting, the City further explained that the
initial list of chemicals it sent were the only ones “that would be evaluated
when an industry has a Total Toxic Organic limit (TTO Limit).” The City
later took a sample of the water that CES discharges into the sewer system for
analysis and found that CES would have no difficulty meeting the proposed
TTO amendment under the original list. The City expressly stated this in
an email to CES on December 3, 2008.
75. The City and CES then met to discuss the TTO issue, but the
City engaged in a classic bait and switch by changing the list of chemicals on
the TTO list. The City explained its decision to substantially increase the
number of chemicals that go into a TTO determination as follows:

The data shared with CES from this study was strictly 624
and 625 methods. It may be that there was a decision made to
use method 624 and 625 because that is our routine and it was a
better fit with what we routinely run in or [sic] lab. Your point
below Matt is correct about not creating toxicity issues. We are
just trying to get you folks coverage under all those compounds
listed on method 624 and 625 while at the same getting a best
fit for the routine, software and lab procedures the City already
runs.

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We will hold this matter open until CES and the City has
a chance to evaluate if the different list really makes an real
difference in the big picture of getting CES coverage while not
triggering violations.

The City did not hold the matter open though. Instead, City Investigator
Clyde Smith wrote that same day to “take back” what his boss so candidly
admitted.
76. Realizing that the City admitted that it made up the new list for
no reason other than the City’s convenience, Clyde Smith wrote an email
stating that the newly added compounds, such as 2-butanone and acetone,
“could be a concern for workers on the sanitary sewer collection system or
endanger the health of the general public if these solvents were discharged
from an industry at elevated concentrations.” He never specified what harm
may occur or what constituted an elevated concentration. These statements
are irrelevant to a permit modification, though, because they do not meet
the standard the City set for itself for modifying a permit.
77. The chemicals that the City alleged could cause harm include
acetone and 2-butanone. Acetone has an OSHA permissible exposure level
of 1000 parts per million (“ppm”). Parts per million are equivalent to mil-
ligrams per liter. Acetone will quickly biodegrade and evaporate when re-
leased into water and is not harmful to aquatic life, including the organisms
used by the City at its POTW. Even concentrations of acetone far greater
than CES has ever produced would be dramatically lower by the time CES’s
discharge reached the City’s waste treatment facility and would do no harm

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to the microbes, the people, or the facility. The story is similar with 2-
butanone. The OSHA permissible exposure limit is 200 ppm and is not
considered hazardous by OSHA. Simply stated, the threat that Clyde Smith
tried to manufacture to justify the City’s decision is not supported by the
facts.

2.2 Cause of Action — 42 U.S.C. §1983

78. CES has a constitutionally protected property interest in its right

to discharge wastewater under Permit 9558. See Complaint at ¶¶69–72 (col-
lecting cases). Because CES has a property interest in its permit right, the
City could terminate this permit right only after giving CES due process of
law. See id. at ¶73 (collecting cases). Endorsement TTO effectively termi-
nated CES’s permit right because it imposed restrictions on that right that
did not exist under the original permit. The City’s latest termination let-
ter, which seeks to enforce Endorsement TTO, makes this invasion of CES’s
permit right clear.
79. The City’s action amounts to termination of a constitutionally
protected property interest without any kind of pretermination hearing at all.
The City did not give CES any opportunity to contest the appropriateness
of its final TTO list after it settled on that list in December 2008. Instead,
the City simply imposed its TTO list through Endorsement TTO in January
2009. See Wedgewood Ltd. Partnership I v. Township of Liberty, Ohio,
456 F. Supp. 2d 904, 937 (S.D. Ohio 2006) (requiring notice and hearing re:

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change to scope of developer’s permit).

80. Endorsement TTO was adopted across the board as a result of
an internal policy decision made by the City’s Wastewater Division. The
decision to enforce Endorsement TTO against CES was an implementation or
execution of this policy. See Complaint ¶¶57–60 (discussing law of municipal
liability under §1983).

3 The City’s unconstitutionally vague odor

ordinance

81. The City of Houston enforces a “nuisance ordinance” governing

odors that reads, in relevant part, as follows:

“(b) The following specific acts, conditions, and things are de-
clared to constitute public nuisances and are hereby prohibited
and made unlawful:
(1) The deposit or accumulation of any foul, decaying, or pu-
trescent substance or other offensive matter in or upon any lot,
street, or in or upon any public or private place in such a way as
to become offensive or objectionable; the overflow of any foul liq-
uids, or the escape of any gases, dusts, fumes, mists, and sprays
to such an extent that the same, or any one of them, shall be-
come, or be likely to become, hazardous to health or a source
of discomfort to persons living or passing in the vicinity, or that
the same shall by reason of offensive odors become a source of
discomfort to persons living or passing in the vicinity thereof.”
Code of Ordinances §10-451.

This ordinance provides no objective standards by which a person subject to

it can comply. The ordinance allows the City to enforce it in a completely

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arbitrary manner and with unfettered discretion.

3.1 The relentless, standardless City odor inspections

82. Under the guise of this ordinance, the City of Houston began a
pattern of harassing inspections that continues to this day. The City has
alleged that CES is emitting strong, off-site odors in alleged violation of the
Citys nuisance ordinance and has investigated CES over 200 times. No other
business in Houston has faced this kind of scrutiny for alleged odor violations.
83. During these investigations, the City, through its employees, used
no scientific method to determine the source of any alleged odor, to determine
what type of odor was allegedly being emitted, to determine the strength of
any alleged odor, or to determine the duration of any alleged odor. The only
manner in which the City determined an alleged violation of the nuisance
ordinance occurred was by going to areas around CES and smelling the air.
In many cases, the City never conducted any investigation within the CES
facility.
84. The City, through its employees, used no objective criteria for
determining whether an alleged violation of the City’s nuisance ordinance
occurred. City employees were simply using their subjective experience to
determine whether an alleged violation occurred.
85. In an attempt to both comply with the nuisance ordinance and
to document the arbitrary and harassing nature of the City’s actions, CES
began videotaping the odor investigations when City inspectors arrived at

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the CES facilities. See Ex. T–V. In one such video, lasting approximately 5
minutes, CES employees offered to walk the property with City inspectors
to determine the source of the alleged odor problem. The City inspectors
refused. See Ex. T. CES then specifically asked what the City looked for
to determine whether a nuisance condition existed, and the City employees
responded that any smell could be a nuisance (it is highly subjective) and
that the City employs no type of objective scale to make that determination.
The City employees also stated that they were aware of the system used by
the TCEQ and the instruments used by the City of Dallas but used neither
of those in Houston. Id.
86. Another video taken of an inspection shows much more egregious
behavior by the City. See Ex. U. In this 12-minute video, the City inspec-
tor showed up with a police officer and spent the first five minutes of the
inspection talking on the telephone. While the City inspector was making
his phone call, the police officer determined that there was no need for his
presence and left. The City inspector, however, refused to walk the property
and conduct an onsite investigation; he stated that he would only walk the
property with a police escort despite repeated offers from CES employees to
escort him. Id.
87. CES asked this inspector repeatedly how he made the determi-
nation that a nuisance odor condition existed in an effort to identify and
correct any problem that may have occurred and to comply with the City’s
ordinance. Instead of providing any information, the inspector became bel-

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ligerent and would do nothing more than demand identification so he could

fill out the NOV form. Id. Finally, the inspector revealed his methodology:
he claimed that he stood on a street next to the CES facility for 30 minutes
and smelled a continuous odor. He would provide no further information.
Interestingly, CES had no operations that day. Id.
88. In yet another videotaped investigation, the City once again came
to the CES facility with the police but yet again refused to walk the property.
See Ex. V. This time, the City inspectors claimed that an off-site inspection
was all they were allowed and required to do. Id. When CES again inquired
how the company was supposed to respond to the NOV when the City would
not identify the odor, the City inspectors told CES “to write a memo.” Id.
The City inspectors further explained that CES should go to Grace Lane
(the street next to the facility) and identify the odor itself just as the City
inspectors had done. The City inspectors said it was CES’s responsibility to
determine the odor source. Of course, the City inspectors also said the wind
had changed and the odor had shifted since they conducted their investiga-
tion. Id. This made it impossible for CES to duplicate whatever inspection
the City conducted. Lastly, when two CES employees were discussing the
City’s lack of a methodology for the inspection, one City inspector inter-
jected himself into the conversation and tried to intimidate the employees by
stating that their discussion was “butting into our investigation” which was
not permitted. The City inspector refused to state how they conducted their
inspection and told CES that if the company had better technical expertise

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than the City then the company should provide it. Id.
89. Each inspector used a different method for determining whether
an odor nuisance was present. Some were inspectors gadget, others used the
nose. None were willing to explain a methodology to CES that CES could use
to bring itself into compliance in the future. And no two inspectors agreed on
what methodology they were all supposed to be using. See City of Webster
v. Signad, Inc., 682 S.W.2d 644, 648 (sign ordinance fatally vague where it
lacked guidelines and left “each successive city engineer [to] select his own
standard” for determining compliance).

3.2 Standardless citizen complaints

90. The City compounds the problem posed by its standardless ordi-
nance by enlisting citizens to file complaints based on a similarly standardless
set of instructions. In the City of Houston Bureau of Air Quality Control
Citizen Collected Evidence Information Packet (“Citizen Packet”), the City
provides an “Odor/Dust Log” that asks the public to rate the intensity of
the odor as either very strong, strong, moderate, light, or very light. Ex.
W. The Citizen Packet also asks the public to rate the offensiveness off the
order as either highly offensive (worst), offensive, unpleasant, not unpleasant
(best). Id. The City provides no other guidance for citizens in this document
and includes a disclaimer at the bottom:

“This is a discretionary guidance document. The guidance is

meant solely for the employees of the City of Houston and may be
revised from time to time. This guidance may not be relied upon

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to create a right, or benefit, substantive or procedural, enforceable

in law or equity by any person of the regulated community. The
City may take action that is at variance with the guidance in the
appropriate case.” Id.

91. In a separate document the City labeled “Report Environmental

Violations,” the City asks the public to call 3-1-1 and provides a description
of what it calls “common environmental violations to report.” Ex. X. This
document lists “Odor Pollution” and asks the public to “[r]eport offensive
odors, and rate them as: Highly Offensive, Offensive, Unpleasant.” Id. The
City provides no guidance in determining how to rate the alleged offensiveness
of an odor.

3.3 Odor NOV’s

92. The actual NOVs issued by the City are instructive in the pro-
cess in which the City engages. See Ex. Z.3 For example, on August 18,
2009, the City issued an NOV at 4:22 p.m. that alleged to be for a viola-
tion of “CC 409 Sec. 451(b)(1): Permit the overflow of foul liquid/escape
of gases/dust/fumes/mist/sprays: Caused Discomfort.” Id. The alleged vi-
olation was described in total as “[p]ermitting the escape of offensive odor
to the extent that shall become a source of discomfort to persons living in
the vicinity.” Id. The NOV contains no information about what material
was allegedly being released, what quantities were allegedly being released,
3
This NOV is simply an example of those issued by the City. The NOV’s are on a form
and all provide essentially the same information and allegations.

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what the duration of the alleged wrongful release was, the source of the al-
leged wrongful release, when the allegedly wrongful release occurred, or how
the allegedly wrongful release was causing discomfort to the persons in the
vicinity of the alleged release. Id.
93. At the bottom of that NOV is a section where the City described
the action it proscribed CES to take:

“You are hereby notified that the above violation(s) must be cor-
rected by: immediately and I agree as a Owner / Lessee / Occu-
pant / Person Having Control or Employee / Agent / Represen-
tative to provide within 10 calendar days from the date of this
notice, a written description of corrective action taken and the
required documentation demonstrating that compliance has been
achieved for the violation(s); or agree to submit a Letter of In-
tent to comply along with a corrective action plan for the alleged
violation(s). Your initials indicate you will provide the aforemen-
tioned information to the City of Houston at the address listed
above.” Id.

94. By issuing the NOV with no information whatsoever about the

allegedly wrongful conduct, the City makes complying with the curative ac-
tion section of the NOV impossible. A company cannot correct an alleged
violation without knowing what the violation is. Likewise, a company cannot
provide a written description of the corrective action taken or a letter of in-
tent describing what corrective action is planned without specific information
about what the constitutes the alleged violation.

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3.4 Cause of Action — 42 U.S.C. §1983

95. The City’s odor ordinance is void for vagueness. A statute is void
for vagueness if it does not define the offense with sufficient definiteness that
an ordinary person can understand what conduct is prohibited and so that
the statute will not be enforced arbitrarily and discriminatorily. Kolender v.
Lawson, 461 U.S. 352, 357-58 (1983). A statute is also void for vagueness if
it does not provide an ordinary citizen sufficient notice that his conduct is
prohibited and fails to provide sufficient standards for enforcement. Bynum,
767 S.W.2d at 773. As the Supreme Court stated:

It is a basic principle of due process that an enactment is void

for vagueness if its prohibitions are not clearly defined. Vague
laws offend several important values. First, because we assume
that man is free to steer between lawful and unlawful conduct, we
insist that laws give the person of ordinary intelligence a reason-
able opportunity to know what is prohibited, so that he may act
accordingly. Vague laws may trap the innocent by not providing
fair warning. Second, if arbitrary and discriminatory enforcement
is to be prevented, laws must provide explicit standards for those
who apply them.

Grayned v. City of Rockford, 408 US 104, 108 (1972).

96. Courts around the country have struck down ordinances like Hous-
ton’s as void for vagueness. See, e.g., Bakery Salvage Corp. v. City of Buffalo,
175 A.D.2d 608, 573 N.Y.S.2d 788 (1991) (invalidating city odor ordinance
as unconstitutional because “offensive” and “noxious” were too ill-defined
and it contained no objective standards to measure odors); City of Festus v.
Werner, 656 S.W.2d 286, 287 (Mo. App. 1983) (odor ordinance unconstitu-

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tionally vague where there was no objective test and violations depended “on
the vagaries of human responses to smells”); Borough of Verona v. Shalit,
222 A.2d 145 (1966) (invalidating odor ordinance for vagueness).
97. The ordinance in question provides for a monetary penalty for
non-compliance. See Code of Ordinances §10-451. CES has a property inter-
est in the money the City seeks to take from CES for all alleged violations
of the ordinance. Board of Regents v. Roth, 408 U.S. 564, 571-72 (1971); see
also Campbell v. Miller, 787 F.2d 217, 222 (7th Cir.), cert. denied, 474 U.S.
1019 (1986); Chauffeur’s Training School, Inc. v. Riley, 967 F. Supp. 719,
729 (N.D.N.Y. 1997); Black v. Dallas County Bail Bond Bd., 882 S.W.2d
434, 439 (Tex. App. 1994); Brewer v. Collins, 857 S.W.2d 819, 823 (Tex.
App. 1993). By attempting to enforce an unconstitutionally vague ordinance
against CES, the City of Houston has deprived CES of its constitutionally
protected property rights without due process of law. See also Abdalla’s
Tavern v. Department of Commerce, 2003 WL 21454696 at *12 (Ohio App.)
(basing conclusion on “other constitutional protections, such as due process
rights, the right to private property, and the right against the government
taking private property without just compensation”).
98. The City did this upon the decision of a policymaker, the head
of the Bureau of Air Quality Control, pursuant to its official policy as laid
down in ordinances and as interpreted by the Bureau of Air Quality Control
and the Office of the City Attorney. The policy appears to have been to
delegate enforcement of the odor ordinance to the individual discretion of

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particular inspectors, in violation of the Due Process Clause. Moreover, in

the alternative, the City is liable for failing to train its inspectors to use any
kind of reliable methodology in enforcing the ordinance. This makes the City
of Houston a proper defendant.
99. The City’s enforcement of the unconstitutional odor ordinance
has caused great damage to CES. Several of CES’s customers have already cut
off business with CES in large part because of the continued odor complaints
that CES has received from the City. Moreover, the ongoing odor complaints
have been a driving factor in motivating the Attorney General’s civil suit
against CES according to the staff of the Attorney General’s office. The odor
ordinance is also the basis for several private class actions currently pending
against CES, in which neighborhood plaintiffs seek to use the ordinance to
support otherwise baseless claims against CES.

4 A temporary injunction is appropriate

100. A plaintiff seeking injunctive relief must demonstrate: (1) a sub-

stantial likelihood of success on the merits; (2) a substantial threat that
irreparable harm will result if the injunction is not granted; (3) that the
threatened injury outweighs the threatened harm to the defendant; and (4)
that granting a preliminary injunction will not disserve the public interest.
Clark v. Pritchard, 812 F.2d 991, 993 (5th Cir. 1987) (citing Canal Authority
of State of Florida v. Callaway, 489 F.2d 567 (5th Cir. 1974)).
101. There is a likelihood of success on the merits. As the cases

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discussed above demonstrate, a municipal government may not deprive a

permitholder of rights under the permit without due process of law. And
it is clear that due process of law requires some pretermination proceeding.
Likewise, the cases demonstrate that a statute that, on its face and as ap-
plied, contains no standards at all for its enforcement and no way for those
subject to it to conform their actions to the law is unconstitutional.
102. Irreparable harm will result if the City is not enjoined. See Com-
plaint ¶63. CES cannot operate without wastewater service. The City’s
latest attempt to terminate that service would, again, leave CES’s clients
unable to operate their own industrial processes. And CES will be unable to
regain the customers and employees that it will lose during any interval in
which the City shuts down its service. CES is already suffering that harm
from enforcement of the City’s odor ordinance.
103. The harm to CES outweighs any potential harm to the City of
Houston. The City has failed to demonstrate that any harm at all will result
or is resulting from CES’s activities. When the City had the chance to
demonstrate such harm at its own administrative hearing, it wholly failed to
do so. See Complaint ¶¶22–27. Later, even the City’s own hearing officer
released a decision holding that the City had failed to prove an imminent
danger to the health of City employees or the public justifying the City’s
emergency shutdown. And because the City’s method for determining odor
nuisances is so unscientific, it is impossible for the City to show any harm
from any such nuisances. For the same reasons, granting an injunction will

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serve the public interest. See Complaint ¶¶64–65.

104. The City’s latest attempt to terminate CES’s wastewater service
unlawfully, coupled with the City’s ongoing efforts to enforce an unconsti-
tutionally vague odor ordinance against CES, demonstrate that the City’s
lawless treatment of CES is a chronic and ongoing problem. CES respect-
fully requests that this Court take continuing jurisdiction over the dealings
between CES and the City of Houston and require the City to obtain prior
leave from this Court before taking further action against CES.

5 Further prayer for relief

105. In addition to the relief prayed for in paragraph 67 of the Original

Complaint, CES respectfully requests:

1. A preliminary injunction (a) preventing the City from enforcing En-

dorsement TTO against CES; (b) preventing the City from enforcing
its odor ordinance against CES; and (c) preventing the City from tak-
ing further regulatory action against CES without first obtaining leave
of this Court;

2. A permanent injunction (a) preventing the City from enforcing En-

dorsement TTO against CES; (b) preventing the City from enforcing
its odor ordinance against CES; and (c) preventing the City from fur-
ther denying CES procedural due process in the future; and

3. Compensatory and punitive damages, attorneys’ fees, expert costs, and

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costs of court to the fullest extent permitted by law for damage caused
by the City’s violations of §1983 pled in this First Amended Complaint.

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DATED: November 5, 2009

Respectfully submitted,

/s/ K.A.D. Camara

K.A.D. Camara
Texas Bar No. 24062646
Southern District Bar No. 870498
camara@camarasibley.com
Attorney-in-Charge for the Plaintiff

Timothy Paul Nyberg

Texas Bar No. 24070349
nyberg@camarasibley.com
Kent Radford
Texas Bar No. 24027640
radford@camarasibley.com
Camara & Sibley LLP
2339 University Boulevard
Houston, Texas 77005
713-893-7973
713-893-1131 (fax)
Attorneys for the Plaintiff

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Certificate of Service
I hereby certify that I served this document on counsel of record as listed
on the Court’s CM/ECF system by CM/ECF on December 17, 2009. I also
served a paper copy on counsel of record by courier with physical exhibits
enclosed on December 17, 2009.

/s/ K.A.D. Camara

K.A.D. Camara

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