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

May 16, 2014

VIA HAND DELIVERY 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.1 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).

1 See, e.g., HB 3117, HB 3119, CSSB 59 (House Amendment 1), & SB 1385 (House Committee Report, SECTION 18),

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Regular Session.

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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.

Sincerely,

N. Alex Winslow Ware V. Wendell Executive Director Director of Legislative Affairs cc: Members of the committee Members of the media Enclosures (news articles)

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https://stateimpact.npr.org/texas/2014/05/06/suing-polluters-texas-again-considers-curbing-county-attorneys/#more-36422

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

regulators.

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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 Business.

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 StateImpact.

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.

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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.

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"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."

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http://cbs7kosa.com/news/article_0c6a2890-b6e4-11e3-afc6-001a4bcf6878.html

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

yard.

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.