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Date: 09-22-2022

Case Style:

David Polston; Inland Environmental and Remediation, Inc.; Inland Recycling, L.L.C.; and Boundary Ventures, Inc. v. The State of Texas, Lower Colorado River Authority, and Colorado County, Texas

Case Number: 03-20-00130-CV

Judge: Darlene Byrne

Court:

Court of Appeals Third Appellate District of Texas at Austin

On appeal from the 53RD DISTRICT COURT OF TRAVIS COUNTY

Plaintiff's Attorney:


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Defendant's Attorney: Mr. Michael Choyke
Mr. Pryce Godfrey Tucker
Mr. Victor Cardenas
Ms. Brittany Greger
Ms. Jessica A. Barger
Mr. Darrell L. Barger

Description:

Austin, Texas – Environmental Litigation lawyer represented Appellants with appealing from an injunction to operate a waste-processing facility.




Polston is the president of Inland Environmental and Remediation, Inland
Recycling, and Boundary Ventures. Appellants own and/or operate a waste-processing facility
that accepts waste, including oil and gas waste, hazardous waste, and industrial solid waste, and
1 The State filed this suit, and LCRA and Colorado County later intervened.
processes it into material that is used as road base. The facility covers 300 acres and has
frontage on Skull Creek, which is a tributary of the Colorado River, and operates under permits
issued by the Railroad Commission of Texas (Railroad Commission or Commission).
On February 8, 2019, the Texas Commission for Environmental Quality (TCEQ)
received complaints that Skull Creek “was running black with a pungent smell downstream of”
the site. The next day, a Texas Parks and Wildlife Department employee observed about
twenty-five dead fish downstream of the facility “with a moderate to strong chemical or
petroleum odor.” TCEQ investigated and found “rampant mismanagement of waste” at the
facility—waste was improperly stored; containers were leaking; and a washout area lacked a
containment wall, “effectively allowing liquid waste to flow out of the washout area.” TCEQ
notified appellants of the problems, and ten days later, appellants responded that they had
addressed TCEQ’s demands. However, on March 22, 2019, TCEQ received a new batch of
citizen complaints, and when TCEQ investigators responded, they “found the mismanagement of
waste documented on February 12, 2019, was unabated.” Toxicology reports of water samples
from the area showed various substances at levels that were “potentially lethal to fish and
render[ed] fish unsafe for human consumption” and “potentially unsafe for ingestion or
skin contact.”
In April 2019, the State, on behalf of its citizens and TCEQ, sued, alleging that
appellants had violated the water code by discharging waste from their recycling facility into
public waters and had not addressed the violations or taken steps to stop further discharges. The
State sought statutory penalties and injunctive relief to “protect the quality of water in the state.”
The trial court signed two temporary restraining orders barring appellants from discharging or
accepting waste at the facility and ordering them to stop storage and processing at the site.
3
In mid-May 2019, the trial court held a hearing on the State’s application for a
temporary injunction, with the State providing evidence of improperly stored waste at the facility
and that Skull Creek had turned black downstream from the facility, resulting in fish kills. On
the second day of the hearing, appellants and the State negotiated an agreed temporary injunction
(the agreed TI), which the court signed on May 14, 2019. In July 2019, the State filed an
amended petition on behalf of Texas’s citizens, TCEQ, and the Railroad Commission, and in
mid-August, it filed a motion for contempt asserting that appellants had not complied with the
agreed TI. About two weeks later, appellants moved to modify the agreed TI, asserting that
because the Commission was now a party to the proceeding, it should be required to complete a
closure plan for the facility, use surety bond funds to conduct “remedial measures” proposed by
appellants, and take other steps to address the environmental contamination alleged at the site.
Appellants also asked the court to extend deadlines and to allow the transfer of containers to
third parties willing to accept them for recycling.
In mid-December 2019, the trial court heard the State’s motion for contempt,
appellants’ motion to stay due to Polston’s filing for bankruptcy, and a motion to dissolve the
agreed TI filed by appellants. The court took the stay under advisement and denied appellants’
motion to dissolve, moving on to the motion for contempt and hearing testimony from multiple
witnesses about appellants’ compliance with the agreed TI or lack thereof and about the state of
the facility and Skull Creek downstream. At the conclusion of the hearing, the court said:
I think there are the big-picture questions, as I said before, the look back of what
is appropriate to address the failure to comply with the Agreed Temporary
Injunction, which everybody acknowledges is happening. And then look forward
of how do we modify the Temporary Injunction going forward to have something
that is practical that does not set everybody up for failure.
4
The court disagreed that it lacked authority to modify the injunction, saying, “[T]he parties
agreed to allow modification to take place, so, come on,” and asked for proposed modifications.
On January 24, 2020, the trial court reconvened the hearing and said that it had
worked through the competing proposals for the modified TI. The State noted that Boundary
Ventures was not a party when the agreed TI was signed and that it had since been brought in as
a defendant. The State also noted that Boundary had held a Commission permit and obtained the
surety bond as part of the permitting process; that Boundary notified the Commission in 2017
that it was not going to operate and thus was not going to renew the permit; that appellants did
not close the facility; and that the Commission sued to obtain the surety funds in a separate
proceeding. At the conclusion of the January 2020 hearing, the trial court signed the State’s
proposed modified TI, which included Boundary Ventures, enjoining appellants from accepting
waste at the site, storing or processing waste in a manner that results in discharge into the water,
disposing of waste at the site, or discharging waste. Under the modified TI, which the State
argues actually reduces appellants’ obligations, appellants are required to, among other things,
maintain a cap at a discharge pipe; contact entities that stored or disposed of waste at the site to
have the waste removed and transported to another facility; and abate and contain all spills and
discharges at the site. Appellants are further required to engage an engineer or geoscientist to do
site investigations, to inventory and map waste at the site, to identify and test all containers for
hazardous waste, to inspect containers to be sure they are properly maintained, to put certain
kinds of waste in appropriate storage, to ensure that any waste within a certain distance from
Skull Creek is properly stored, and to construct berms to protect a lake called 50-Acre Lake
from discharge.
5
STANDARD OF REVIEW AND RELEVANT STATUTES
A temporary injunction is intended “to preserve the status quo of the litigation’s
subject matter pending a trial on the merits” and “is an extraordinary remedy and does not issue
as a matter of right.” Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). The grant
or denial of a temporary injunction is within the trial court’s sound discretion, and we may not
substitute our judgment for that of the court unless its “action was so arbitrary that it exceeded
the bounds of reasonable discretion.” Id. The trial court does not abuse its discretion if some
evidence reasonably supports its decision, id. at 211, even if the evidence is conflicting, Taylor
Hous. Auth. v. Shorts, 549 S.W.3d 865, 878 (Tex. App.—Austin 2018, no pet.). An appeal from
a temporary injunction “does not present the merits of the underlying case for review, but only
whether the trial court abused its discretion in determining whether or not the applicant is
entitled to preservation of the status quo pending determination of those merits.” Id.
Generally, an applicant for a temporary injunction must plead and prove (1) a
cause of action against the defendant; (2) a probable right to the relief sought; and (3) a probable,
imminent, and irreparable injury in the interim. Butnaru, 84 S.W.3d at 204. However, the
State’s inability to enforce its “duly enacted [laws] clearly inflicts irreparable harm on the State.”
Texas Ass’n of Bus. v. City of Austin, 565 S.W.3d 425, 441 (Tex. App.—Austin 2018, pet.
denied) (quoting Abbott v. Perez, __ U.S. __, 138 S.Ct. 2305, 2324 n.17 (2018)); see Washington
v. Associated Builders & Contractors of S. Tex. Inc., 621 S.W.3d 305, 319 (Tex. App.—San
Antonio 2021, no pet.) (“Like the trial court, our sister court, and the Supreme Court, we agree
that the ‘inability [of a state] to enforce its duly enacted [laws] clearly inflicts irreparable harm
on the State.’” (quoting Abbott, 138 S.Ct. at 2324 n.17, and Texas Ass’n of Bus., 565 S.W.3d at
441)). And “when an applicant relies upon a statutory source for injunctive relief, . . . the
6
statute’s express language supersedes the common law injunctive relief elements such as
imminent harm or irreparable injury and lack of an adequate remedy at law.” West v. State,
212 S.W.3d 513, 519 (Tex. App.—Austin 2006, no pet.); see White Lion Holdings, L.L.C.
v. State, No. 01-14-00104-CV, 2015 WL 5626564, at *9 (Tex. App.—Houston [1st Dist.]
Sept. 24, 2015, pet. denied) (mem. op.).
Unless authorized by TCEQ or certain other entities, a person may not discharge
sewage, pollutant, or municipal, recreational, agricultural, or industrial waste “into or adjacent to
any water in the state”; may not discharge other waste if it causes or will cause “pollution of any
water in the state”; and may not “commit any other act or engage in any other activity which in
itself or in conjunction with any other discharge or activity causes, continues to cause, or will
cause pollution of any of the water in the state.” Tex. Water Code § 26.121(a), (d), (e).
2 In
addition, under the Texas Hazardous Substances Spill Prevention and Control Act, in the event
of a spill or discharge of hazardous substances into state waters, the owner or operator of the
facility “shall immediately undertake all reasonable actions to abate and remove the discharge or
spill” and, if the responsible person fails to do so or responds inadequately, TCEQ “may
2 “Waste” is statutorily defined as “sewage, industrial waste, municipal waste,
recreational waste, agricultural waste, or other waste,” Tex. Water Code § 26.001(6); “industrial
waste” is a byproduct of “any process of industry, manufacturing, trade, or business,” id.
§ 26.001(11); “pollutant” includes solid waste, chemical waste, sand, and industrial waste
discharged into state waters, id. § 26.001(13); and “pollution” is “the alteration of the physical,
thermal, chemical, or biological quality of, or the contamination of, any water in the state that
renders the water harmful, detrimental, or injurious to humans, animal life, vegetation, or
property or to public health, safety, or welfare, or impairs the usefulness or the public enjoyment
of the water for any lawful or reasonable purpose,” id. § 26.001(14). “Discharge or spill” is
defined as an act or omission, other than one authorized by permit or regulated by the Railroad
Commission, “by which hazardous substances in harmful quantities are spilled, leaked, pumped,
poured, emitted, entered, or dumped onto or into waters in this state or by which those
substances are deposited where, unless controlled or removed, they may drain, seep, run, or
otherwise enter water in this state.” Id. § 26.263(1).
7
undertake the removal of the discharge or spill and may retain agents for these purposes who
shall operate under the direction of the executive director.” Id. § 26.266(a), (b). “If it appears
that a violation or threat of violation of a statute within [TCEQ’s] jurisdiction . . . has occurred or
is about to occur,” TCEQ may initiate a lawsuit “for injunctive relief to restrain the violation or
threat of violation.” Id. § 7.032(b); see also id. § 7.105(b)(1) (if person “is alleged to be making
or to have made an unauthorized discharge of waste into or adjacent to the waters in the state at a
new point of discharge without a permit in violation of state law,” TCEQ shall request initiation
of enforcement suit). The trial court may grant TCEQ “any prohibitory or mandatory injunction
the facts may warrant, including a temporary restraining order and, after notice and hearing, a
temporary injunction or permanent injunction.” Id. § 7.032(d). TCEQ may also seek
administrative, civil, and criminal penalties. See, e.g., id. §§ 7.051, .052, .102, .103, .145, .147.
TCEQ also has jurisdiction over solid waste under the Solid Waste Disposal Act,
see, e.g., Tex. Health & Safety Code § 361.017 (TCEQ’s jurisdiction over industrial solid waste
and hazardous municipal waste), see also id. § 371.028 (TCEQ must adopt rules and procedures
to implement used-oil recycling program), and may sue for injunctive relief if it believes a
person is improperly releasing or threatening to release solid waste, see id. § 361.273. TCEQ has
promulgated rules governing industrial solid waste, including providing that “no person may
cause, suffer, allow, or permit any activity of storage, processing, or disposal of any industrial
solid waste or municipal hazardous waste unless such activity is authorized by” TCEQ or another
entity. 30 Tex. Admin. Code § 335.2(a) (Tex. Comm’n on Env’t Quality, Permit Required). In
addition, a person may not “cause, suffer, allow, or permit the collection, handling, storage,
processing, or disposal of industrial solid waste or municipal hazardous waste” so as to cause an
unauthorized “discharge or imminent threat of discharge” of the waste “into or adjacent to the
8
waters in the state,” a nuisance, or “the endangerment of the public health and welfare.” Id.
§ 335.4 (Tex. Comm’n on Env’t Quality, General Prohibitions). Similarly, a person may not
allow “the collection, storage, transportation, processing, or disposal of municipal solid waste” or
use a solid-waste facility to store, process, or dispose of solid waste in violation of statute or rule
in a way that causes an unauthorized discharge or imminent threat of discharge of municipal
solid waste into state waters, a nuisance, or “the endangerment of the human health and welfare
or the environment.” Id. § 330.15(a) (Tex. Comm’n on Env’t Quality, General Prohibitions).3
Meanwhile, the Railroad Commission is empowered to “prevent pollution of
surface water or subsurface water in the state” with regard to oil and gas wells, the production of
oil and gas, and “the discharge, storage, handling, transportation, reclamation, or disposal of oil
and gas waste . . . or of any other substance or material associated with any operation or activity
regulated by” the Commission. Tex. Nat. Res. Code § 91.101; see id. § 91.1011 (defining “oil
and gas waste”). The Commission has the authority to enforce statutes under its jurisdiction,
“including the authority to seek and obtain civil penalties and injunctive relief.” Id. § 91.003(a);
see id. § 91.002 (person who violates section 91.101 or Commission rule, order or permit may be
subject to criminal penalties).
3 “Special waste,” a kind of municipal solid waste, is any solid waste or combination of
solid wastes that due to its quantity, concentration, or characteristics “requires special handling
and disposal to protect the human health or the environment.” 30 Tex. Admin. Code
§ 330.3(154) (Tex. Comm’n on Env’t Quality, Definitions). Special wastes include certain
industrial nonhazardous wastes; “wastes from commercial or industrial wastewater treatment
plants; air pollution control facilities”; “tanks, drums, or containers used for shipping or storing
any material that has been listed as a hazardous constituent” but not as a commercial chemical
product; “soil contaminated by petroleum products, crude oils, or chemicals in” certain
concentrations; used oil; “waste from oil, gas, and geothermal activities subject to regulation by
the [Railroad Commission] when those wastes are to be processed, treated, or disposed of at a
solid waste management facility authorized under this chapter.” Id.
9
DISCUSSION
Appellants assert six issues on appeal: that the trial court abused its discretion in
entering the TI because there were no findings of a statutory violation or threatened violation and
no evidence to support such a finding; that the TI effectively and improperly grants appellees
substantially all of the permanent injunctive relief they sought; that although the TI purports to
enjoin appellants from violating the law, the central question in the proceeding is whether the
enjoined conduct was a violation of the law; that the TI is void because it does not adequately
explain the reasons for its issuance; that the TI requires appellants to take affirmative steps and
alter the status quo with no showing of extreme necessity or hardship to justify such a
requirement; and that the TI is overbroad because it improperly enjoins Boundary Ventures, “a
party against whom no party has applied for a temporary injunction,” defines “waste” in a vague
and overbroad manner so as to bar appellants from engaging in lawful activities, and defines
“site” “in a manner that makes the injunction overbroad.”
As an initial matter, we disagree with the State’s assertion that we should not
consider complaints that could also have been brought against the agreed TI.4 “[A]n order that
modifies a temporary injunction is the equivalent of an order that dissolves a temporary
injunction and grants a new one.” West I-10 Volunteer Fire Dep’t v. Harris Cnty. Emergency
Servs. Dist. No. 48, 507 S.W.3d 356, 358-59 (Tex. App.—Houston [1st Dist.] 2016, no pet.).
4 The State, observing that appellants negotiated and agreed to the terms of the agreed TI
and did not take an appeal, argues that appellants have waived any complaints against the
modified TI that could also have been raised against the agreed TI. Appellants argue that such a
holding would work against public policy by discouraging parties from attempting to find a path
that would benefit everyone, “even those that would not properly be included in an injunction,
under the (mistaken) belief they had the financial ability to complete those tasks.”
10
We thus consider the entire modified TI rather than only terms that differ substantially from
those of the agreed TI.
1. Did the State present sufficient evidence of statutory violations?
In their first issue, appellants challenge whether the State presented sufficient
evidence that appellants violated or threatened to violate the applicable statutes. Appellants first
insist that because the State relied on statutory violations to justify its request for injunctive
relief, which appellants concede “obviate[es] the need to establish the elements of irreparable
harm and lack of adequate remedy by law,” see Texas Ass’n of Bus., 565 S.W.3d at 441, the State
was required to show “more than just a probable right to recovery” and instead had to “establish
by conclusive evidence” that appellants had violated or threatened to violate any relevant
statutes. For support, they cite cases holding that when there is a conclusive showing of a
violation of the law, the trial court lacks discretion to do anything other than enjoin the violation.
See San Miguel v. City of Windcrest, 40 S.W.3d 104, 107 (Tex. App.—San Antonio 2000, no
pet.); City of Georgetown v. Days Inn of Georgetown, No. 03-99-00010-CV, 1999 WL 670709,
at *2 (Tex. App.—Austin Aug. 31, 1999, no pet.) (not designated for publication); Priest
v. Texas Animal Health Comm’n, 780 S.W.2d 874, 876 (Tex. App.—Dallas 1989, no writ); City
of Houston v. Memorial Bend Util. Co., 331 S.W.2d 418, 422 (Tex. App.—Houston 1960, writ
ref’d n.r.e.). However, the fact that a trial court must enjoin violations of the law that are
conclusively shown does not mean that a trial court may not issue an injunction against statutory
violations when the evidence supports a conclusion that the defendants are likely violating the
law but does not conclusively establish that fact. We thus disagree that the State was required to
11
establish actual or threatened violations of the law “by conclusive evidence” before a temporary
injunction could be issued.
Appellants also argue that the TI “contains no findings by the trial court that
Polston or Inland violated or threatened to violate any statute or regulation.”5 Relatedly, in their
third issue, appellants argue that the TI violates Texas Rule of Civil Procedure 683 because it
does not adequately state the reasons for issuance.
Rule 683 provides:
Every order granting an injunction and every restraining order shall set forth the
reasons for its issuance; shall be specific in terms; shall describe in reasonable
detail and not by reference to the complaint or other document, the act or acts
sought to be restrained; and is binding only upon the parties to the action, their
officers, agents, servants, employees, and attorneys, and upon those persons in
active concert or participation with them who receive actual notice of the order by
personal service or otherwise.
Tex. R. Civ. P. 683. “[T]he obvious purpose of [Rule 683] is to adequately inform a party of
what he is enjoined from doing and the reason why he is so enjoined.” Texas Health & Hum.
Servs. Comm’n v. Advocates for Patient Access, Inc., 399 S.W.3d 615, 628 (Tex. App.—Austin
2013, no pet.) (quoting El Tacaso, Inc. v. Jireh Star, Inc., 356 S.W.3d 740, 744 (Tex. App.—
Dallas 2011, no pet.)).
The TI states that it is intended to:
enforce and enjoin violations of the Texas Water Code, the Texas Health and
Safety Code, the Texas Natural Resources Code, and rules promulgated
thereunder by the TCEQ and [the Railroad Commission], which control the
5 Appellants assert that the trial court “expressly declined” to make a finding of fact that
there was a violation or threatened violation of law. However, after appellants filed a request for
findings of fact and conclusions of law, the trial court declined, sending the parties a letter stating
that it “need not file findings of fact and conclusions of law in appeals of interlocutory orders.”
We do not view that decision as commenting on whether the court had found that appellants had
violated or threatened to violate one of the environmental statutes.
12
quality of water in the state and the management of solid waste, hazardous waste
and oil and gas wastes pertaining to the Defendants’ facility . . . , and to assess
and initiate remediation of environmental contamination present at the facility.
Appellants argue that this statement is too conclusory because it does not specify which statutes,
rules, or regulations had been violated or how appellants had violated any statutes or rules. They
argue that the TI “simply sets out in general terms the elements necessary for injunctive relief in
a statutory violation case,” as in Independent Capital Management, L.L.C. v. Collins,
261 S.W.3d 792, 795-96 (Tex. App.—Dallas 2008, no pet.), as opposed to those found to be
sufficient in West, 212 S.W.3d at 521-22, and San Miguel, 40 S.W.3d at 108.
In Collins, the injunction merely recited the elements that entitle a party to
injunctive relief:
(a) Plaintiffs are entitled to injunctive relief from this Court as a result of the
actions committed by Defendants ICAP and ASSOCIATES, (b) Plaintiffs have a
probable right to recover in this action, (c) Plaintiffs are suffering and will
continue to suffer immediate and irreparable harm as a proximate result of the
conduct of the Defendants ICAP and ASSOCIATES, (d) Plaintiffs have not [sic]
adequate remedy at law, (e) action by the Court is necessary to preserve the status
quo, and (f) Plaintiff’s Motion request [sic] that a Temporary Injunction be issued,
should be GRANTED.
261 S.W.3d at 795-96. The modified TI, although it does not specify specific statutes that were
being violated, specifies that an injunction was necessary to enjoin appellants’ violations of the
water code, health and safety code, natural resources code, and applicable rules, also stating that
environmental contamination existed at appellants’ facility and required remediation. It thus is
more akin to the injunction in West, which found that the defendants would dissipate funds
obtained through misrepresentations that violated the Deceptive Trade Practices Act, 212 S.W.3d
at 521-22, or San Miguel, which found that the defendants had violated the city’s zoning code,
thus “constitut[ing] the injury necessary to the granting of a temporary injunction,” 40 S.W.3d at
13
108. The TI thus states with sufficient specificity that appellants’ facility was in violation of
state law. We overrule appellants’ third issue and the related portion of their first issue.
Finally, appellants argue in their first issue that the evidence does not establish a
violation or threatened violation of statute because by the time the modified TI was signed, they
had already capped the pipe that had been discharging directly into Skull Creek, and the State did
not present evidence showing other statutory violations. Appellants assert that the State’s
witnesses, when asked “about other alleged discharges” at the facility, testified that they had not
taken samples or conducted testing to determine what the alleged discharges consisted of and
only testified that various containers at the site were leaking or standing open. To address this
argument, we will first summarize the evidence presented to the trial court.
In the May 2019 hearing, which resulted in the agreed TI, the trial court heard
testimony by Trey Thumann, a TCEQ environmental investigator, who described the site and its
condition between February and May 2019. The facility includes “two super sack pad areas”6
(one of which—Super Sack Pad Area 2—is adjacent to Skull Creek on the southern end of the
facility), “two wash racks” and a “mixing pit,”7 a chemical-storage area, a recycling area, a
6 A “super sack” is “a large white bag that different materials are stored in.” The bags
are durable fabric, open at the top, and “very large.”
7 Wash racks are areas where appellants “wash off truck tires, trailer tires, and then they
wash out plastic totes and other types of containers,” including from the chemical storage area.
Wastewater from the process collects into a wash rack, which has a concrete containment wall on
three sides, and is then transferred into tanks. Some wastewater is used to make road base, and
some was discharged through a pipe “directly into Skull Creek.” The “sludgy material” that
remains in the wash racks, along with other materials “from tanks they’ve emptied,” is put into
the mixing pit, which is “an open-air containment basin” with earthen berms but no impervious
or concrete liner. Appellants try “to solidify the material in there, basically by turning it upside
down—or turning it over to dry it out.”
14
storage-tank area, and “several piles of road base material.”8 On February 12, Thumann did not
observe any contamination or odor upstream from the facility, but downstream he saw “[a] black
coloration to the water and kind of a hydrocarbon-y, sewage-y smell,” testifying that the water’s
usefulness had been impaired because “the water is black, it smells, and the fish in it have died.”
He said the pollution was caused by the facility’s discharge pipe and Super Sack Pad Area 2,
where material was “oozing from the ground” and the same material was found in Skull Creek.
Thumann believed the super sacks contained a combination of “[f]rac sand and
WG-39,” explaining that Polston had informed him that the sacks contained WG-39. Polston
also gave Thumann a safety data sheet for WG-39 and told him that WG-39 “was food-grade
carbohydrate.” The super sacks were stored on the ground without liners or other impervious
material under them, most were deteriorating, and “[a] majority of” the contents “were spilling
out onto the ground” and exposed to precipitation and runoff. By mid-April, the super sacks
were gone, and Thumann saw a bulldozer with “remnants of the sack” on its blade and tracks and
“material that was contained inside the sacks” on the bulldozer and on the ground next to it. He
believed the super sacks had been “pushed into the ground” in an area adjacent to a pond.
In the chemical-storage area, Thumann observed numerous containers sitting on
the ground with no liner or other barrier materials under them—some had “lids off of them” and
some lacked lids altogether. Thumann observed spills, leakage, contents “spread across the
ground,” and “weathered and deteriorating” containers. He did not see apparent precautions
against spills or apparent efforts to clean up spills or prevent them from leaching into the ground.
The area included a berm to prevent storm water from washing spills into a nearby pond, but
8 Road base is “the base material that’s applied in a road construction project” as a “base
for the actual road construction project.” It is a granular material with “a hydrocarbon-y smell to
it” made on site by mixing different materials with Portland cement.
15
there were still areas “where it flowed into the pond.” Thumann conceded that he had not asked
what was under the containers, sampled all of the containers, or dug down to see if there was a
barrier under the tote or whether the spilled materials had soaked into the ground. Thumann also
observed road base “stockpiled on the site,” including near Skull Creek, and used for berms and
roads around the facility. Some of the piles, which were on the ground with nothing underneath
them, were thirty to forty feet tall and thirty yards wide, and Thumann saw liquid hydrocarbon
leach out during rain events. One wash-rack wall was cracked with “discharge points,” and at
another, liquid had “escaped the primary containment area,” requiring appellants to build a dirt
berm to stop discharges. Between February and May, appellants enlarged the mixing pit, making
it “[p]robably 20 foot longer,” and Thumann saw liquids in the pit and testified that if it rained
heavily, the pit would reach capacity and overflow into surrounding areas. While the April 2019
TROs were in effect, Thumann saw appellants accept materials from tanker trucks, despite being
ordered not to do so, and said appellants had not placed all waste in covered, non-leaking
containers or prevented discharges of wastes “and materials of concern.” Thumann also saw the
same leaking containers over several visits with no change in their condition.
Bills of lading from March and April 2019 were introduced into evidence and
show that appellants accepted waste such as: “spent caustic solution,” “waste corrosive liquid,
flammable,” and “N.O.S. (sodium hydroxide)”; “Flammable Liquids N.O.S.,”
“trimethylbenzene,” and “dimethylminoethanol”; “caustic water, NOS (sodium hydroxide)”;
“Hydrocarbon Liquid, N.O.S. (Slop Oil)”; and “Flammable liquids” containing toluene solution,
methyl alcohol, methanol, and chlorobenzene. Photographs were also introduced into evidence,
and some depict leaking, open, or spilled containers; an area in which an unidentified material
was “oozing onto the ground from its packaging”; the bulldozed Super Sack Pad Area 2 showing
16
sack remnants and “black gel-like material that was observed oozing from the ground”; and the
same or “very similar” material on the banks and in the black water of Skull Creek.
The trial court heard testimony about testing conducted on soil and water samples
taken from the area in February and March. Upstream of the facility, the tests did not detect
volatile organic compounds (VOCs) or semi-volatile organic compounds above quantifiable
limits. A sample from the facility’s discharge pipe had elevated levels of total petroleum
hydrocarbons (TPH) and chemical oxygen demand (COD),
9 and downstream, the samples
contained COD and manganese10 higher than levels deemed safe, as well as heightened levels of
TPH, chromium, copper, lead, zinc, and VOCs toluene, zylene, “ethylbenzene, 1,2,4-
trimethylbenzene, 1,3,5-trimethylbenzene,” all of which are potentially toxic.
In the December 2019 hearing on the State’s motion for contempt,11 Jason
Ybarra, a Waste Section Program and Emergency Response Manager with TCEQ, testified that
he had visited the site about seventeen times since the agreed TI was signed in May 2019,
including the week before the December 2019 hearing. Based on his observations, he did not
think appellants had complied or even attempted to comply with the trial court’s orders. Ybarra
testified about photographs taken during his visits and introduced into evidence, describing
photos taken in June as showing totes with leaking chemicals or “some type of oil or gas
9 Thumann explained that “[t]he higher the COD level, the less available oxygen in the
water for aquatic life” and testified that the discharge-pipe sample had “the highest COD level
we have ever seen.”
10 Manganese can harm livestock that drink the water, and livestock tracks were found at
the site.
11 In addition to the witnesses called by the State and appellants, Polston also took the
stand but, in response to every question he was asked, declined to answer under the Fifth
Amendment on the grounds that it might tend to incriminate him.
17
material” onto the ground; totes that were stacked with chemicals leaking from the top and
corroding containers on the bottom; “[a] lot of totes that were uncovered” with an “oily mixture”
leaking and overflowing and staining the ground”; “some type of chemical that was cracked on
the tote and was leaking on the ground and kind of pooling and then drying”; livestock tracks in
the chemical stains; and containers that had been double stacked but had fallen when the plastic
deteriorated and cracked, leaking their contents onto the ground. Ybarra explained that some of
the photographs showed the same broken and leaking containers over a period of months, with
no change in how they were being handled.
Asked about the agreed TI’s provision requiring appellants to stop discharging
waste and about the chemical-storage area at the site, Ybarra testified that “there’s a lot of totes
that are unlabeled, drums that are unlabeled, small containers, and during the site visits, you
would see discharges from a lot of the totes, containers, and drums that deteriorated and have
broken. And you will see a lot of the soil saturated as well.” In addition, Ybarra saw “a lot of
drums” in the chemical-storage area that “were bulging at the seams and creating kind of domes
over the drum, where the volatile materials were in there were basically expanding the drum, and
kind of on the hot days that we were there, you can hear them pop and move.” He testified that
there is a “real strong volatile odor in most of the [chemical-storage] area,” explaining that
“volatile” meant “kind of the benzene, toluylene, a lot of flammable liquid smells,” and that he
also noted “hydrocarbon odor” or “real pungent kind of acidic smells.” Ybarra said that in every
one of his seventeen visits, he had seen discharges at the chemical-storage area.
Ybarra was asked about Super Sack Pad Area 2, from which appellants were
supposed to have removed “waste, including super sack material and WG-39,” by May 21, 2019.
He described WG-39 as “kind of a black liquid that’s syrupy and oozy, and, you know, it’s
18
pooled” in the area. Ybarra testified that appellants had scooped material out of “Priority Area
A” but had then dumped it on top of “Priority Area B,” merely moving the waste around. He
said appellants “did not dispose of anything” and testified that his impression of appellants’
efforts to remove waste from Priority Area B was that “[it] was a complete failure.”
Ybarra testified similarly about the mixing pit, saying that in late June, he did not
see any efforts to remove liquids from the pit: “the pits [were] still full” and were at “about the
same level.” He was also asked about the road base and contaminated sediment in Skull Creek
and said that in September 2019, there were still chunks of road base on the creek’s banks and
that he had not seen appellants attempting to remove road base or contaminated sediment from
the creek. Ybarra had never seen a licensed professional engineer or geoscientist investigating
the site,
12 nor had appellants submitted a report from such an investigation. He testified
similarly about appellants’ failure to address other requirements of the agreed TI, such as
characterizing waste on the site13 or removing waste from open basins. Although appellants had
shown the trial court before and after pictures showing dry containment areas, Ybarra testified
that the week before the hearing, the depicted tank “was at least half full of contaminated water.”
Throughout his testimony, Ybarra was asked to describe steps appellants could
take to address the requirements of the agreed TI. He said, for example, that they should have
inspected the containers, removed any that were not structurally sound, and cleaned up spills on
the ground or that they could have used their operable pumping equipment to remove
12 The agreed TI required appellants to have a licensed engineer or geoscientist prepare a
report of the site and the extent of waste contamination within sixty days.
13 “[W]hen you have an undetermined waste, you would do a hazardous waste
characterization,” “looking for ignitability, reactivity, toxicity, and grosivity, and seeing if it’s a
characteristic for hazardous waste,” and then disposing of the waste at appropriate facilities.
19
contaminated water from open basins and transported it to a facility authorized to dispose of it.
Ybarra said that appellants had taken few steps to address the trial court’s requirements and that
he would characterize appellants’ efforts to comply with the agreed TI as “[i]nadequate” or even
“[a] complete failure.” He thought appellants could comply with the agreed TI but instead were
in willful violation of it.
Ybarra was aware that the Railroad Commission was on site but did not know
when it started to have a presence at the facility. He said he had learned from Commission
personnel that “they’ve seen people take road base” from the site. As for appellants’ efforts to
comply with the agreed TI, Ybarra had seen some workers “kind of excavating and moving”
material from Super Sack Area 2, dumping “on Priority Area B, but it wasn’t a lot of workers.”
Ybarra did not know how much it would cost to hire sufficient workers or to dispose of the
amount of waste at the facility. Appellants had “made some calls and talked with some people”
about getting the waste characterized so it could be moved. Further, Ybarra had seen workers
“sucking out oils from the ponded area where when it rains everything overflows and it
discharged all into the ponds. And they were trying to recover the oil from it.” However, it was
“[k]ind of after the fact” because appellants “never pumped out the basins, and then it rained and
then it overflowed, so it impacted more of the property.” Ybarra saw efforts to plug leaks in the
mixing pit and said that appellants had eventually drained the liquid and covered the pit to
minimize contact with rainwater. He had also seen workers “rifling through the WG-39
deteriorated bags, kind of segregating super sacks, segregating the broken pallet wood, and then
segregating the WG-39 and some—and some soils and some road base,” “making big waste piles
of it.” He agreed that appellants were “segregating different waste streams” but noted that there
is “environmental harm that is going along with it as well.” A fact sheet about WG-39 states that
20
it is nonhazardous, but Ybarra said, “We don’t know if it was—you know, had any other toxics
mixed with it,” although he conceded that he did not know that any other substances were mixed
into the WG-39 in the super-sack areas. Ybarra testified that the WG-39 had leaked into state
waters, where its effect on aquatic life would be to “starve them from oxygen and kill them.”
Ybarra said that although appellants had made some efforts to clean up the super-sack area, there
are “no controls in place for discharges,” whether from WG-39’s powder form, its “clumped up
form,” or its “black, oozy liquid” form.
Ybarra had seen a report stating that appellants had emptied one leaking tote and
transferred the waste into a nonleaking container, and he knew of a June report indicating that at
least twenty drums were listed on a bill of lading as being removed from the facility, but he also
said that “we don’t know the final disposition” or whether the material was sent to a proper
facility for disposal or recycling. Ybarra guessed that appellants had removed about fifteen
containers from the chemical-storage area since the agreed TI was signed but thought “a couple
thousand” containers remained. Ybarra said that appellants had immediately installed the
required cap on the discharge pipe and that he had seen appellants attempting to construct berms
to separate the creek from a lake.
Philip Bullock, an environmental geoscientist hired by LCRA to inspect and
investigate the site, testified that before the agreed TI was signed, appellants were discharging
waste directly into Skull Creek from the discharge pipe and also through road-base materials that
had been used to build dams or roads throughout the site. He had been to the site three times,
including after the agreed TI was signed, and had collected water and sediment samples
upstream of the facility’s discharge point, at the discharge pipe, and downstream in Skull Creek
and the 50-Acre Lake. Bullock testified that upstream, “all indications,” including visual
21
observations, “appeared normal and clean. There was no evidence of contamination.” At the
discharge point, however, “the conditions were very clearly different. There were odors. There
was black staining. So it was quite apparent that the discharge and the area downstream of the
discharge pipe was the source of contamination that was observed.” He said the “odors were
very strong, and the water coming out of there—the liquid coming out of there was dark. And so
it was an obvious source.” Testing from the discharge pipe and the area near the pipe showed
the same contaminants, and Bullock explained that the samples contained “benzene, total BTEX,
total TPH, and total PHAs detected at very high levels, as well as the pH detected at a very high
level.” Bullock testified that the test results were consistent with his field observations. Bullock
also testified that his team had conducted testing on the road-base material and found “very high
levels of the same types of chemicals we were seeing in the sediment.” He said the road base
“breaks up and . . . falls apart under pressure. When you break it open, there were hydrocarbon
odors very apparent.”
As for the super-sack areas, Bullock said in August 2019, he smelled “strong
hydrocarbon odors” and observed:
bags of materials and pallets that they were on were all being pushed into a local
pond or, you know, water body that was right there. . . . They were being buried
into this pond. When you walked around on the surface, it was spongy where the
materials were. You would see black hydrocarbon-rich material oozing out,
seeping out from different areas.
Bullock was asked about appellants’ insistence that WG-39 is “just carbohydrate,” and he said he
had taken a sample from the super-sack area but that “it was just a mess” and he “couldn’t
distinguish whether or not what we were sampling was super sack material or stuff that had been
mixed with it.” The tests from that area showed “very high levels of petroleum hydrocarbons.”
22
Bullock agreed that appellants had attempted to build some berms but said he had
not seen any indication that appellants consulted with a professional engineer or geoscientist in
designing the berms, as required by the agreed TI. Further, appellants had used “very sandy,
noncohesive material” that was insufficient to withstand flood conditions—the materials used are
“very permeable,” “very subject to erosion,” and may be damaged by or washed out in flooding,
“basically becom[ing] ineffective.” Bullock testified that the “berms were considered critical”
because they are intended to isolate the 50-Acre Lake, which “is full of contaminated sediments
that have been washed in from the road base materials that have been used out there as well as
the discharges,” from Skull Creek, allowing appellants to “focus their resources on cleaning up”
the creek. The berms are “not an expensive part [of the agreed TI], but it was considered to be
very important to being able to protect downstream property owners and the Colorado River.”
Bullock also testified that appellants had “failed to remove the sediments from the
creek and the road base,” and he did not think appellants’ inventory of the chemical-storage area
was sufficiently specific, noting for example that one of the listings is “oil and water” and stating
that “oil” “is a broad term, and I wouldn’t know what particular chemicals are in that oil.” He
explained that it is important to know exactly what materials are in the various totes because
“[y]ou don’t want to store chemicals that are incompatible with each other in the same areas.”
Bullock said appellants had not complied with various terms of the agreed TI.
Peter Pope, Site Remediation Section manager for the Railroad Commission,
testified that none of appellants held a current Railroad Commission permit. He said that
appellants had a permit with a 2007 expiration date, which had been renewed until March 2017,
when the Commission received a letter from appellants indicating bankruptcy and stating that
they were no longer pursuing renewal. The Commission then informed appellants that the
23
facility could not accept any further waste and “must begin closure activities.” Under the permit,
appellants were limited to 4,000 cubic yards of treated waste and 7,750 cubic yards of untreated
waste, and Pope testified that in the Commission’s estimate, more than “200,000 cubic yards of
untreated waste” was “piled on site.” He described it as about “a football field length. And in
the highest point, stacked up between 20 and 30 feet.”
Pope also testified that appellants had provided the required financial assurance
by way of a $5,575,000 bond from a surety. The bond had been forfeited, which means the
money “goes into the Oil and Gas Regulation Cleanup Fund” to be used by the Commission “to
plug abandoned wells[,] clean up abandoned oil field sites,” and conduct environmental
investigations. Pope said that certain conditions must be met before cleanup-fund money can be
used—generally, the “site should be abandoned,” although the Commission can spend funds if
there is an emergency situation and the Commission cannot “get the operator to respond timely”;
the waste must be of a kind that is within the Commission’s jurisdiction, which is generally
“waste generated from drilling a well” or “generated along the transport of oil and gas to a
refinery”; and the Commission has to prioritize sites based on its annual budget and a list of sites
needing to be addressed. Pope testified that the super sacks at the site do not fall within
Commission jurisdiction; that the waste held in the frac tanks and mixing pit might, depending
on what is in them and where the waste came from; and that he believed there had been
“commingling of TCEQ and Railroad jurisdiction waste” at the facility. The Commission had
not taken over the facility, although it was in the process of “initiat[ing] an enforcement action,”
which can result in the Commission paying for clean up if the operator does not do it itself. Pope
testified that it is the operator’s responsibility to clean up the site and that if the Commission
spends money to do so, whether from the cleanup fund or another source, it will probably seek
24
recovery of those funds from appellants. Based on what he had seen, the bond amount will not
cover the “Railroad jurisdiction waste cleanup.” Instead, he was “aware of an estimate of close
to $80 million” “just to remediate the areas of concern under the Railroad Commission’s
jurisdiction,” although he agreed that a consulting company hired by the Commission had
developed “remedial alternatives,” one of which included groundwater monitoring for thirty
years that would cost closer to $750,000. Pope agreed that appellants’ proposed modifications to
the injunction would require the Commission to “do things it’s not authorized to do.”
Tim O’Neil, an engineer employed by ESE Partners and called by appellants,
testified that ESE was an “environmental consultant” and that ESE personnel “go out and do site
inspections, on average, twice a week to evaluate general conditions, various locations across the
site, and we have done also some limited amount of sampling and testing.” O’Neil had been to
the site six to eight times and had worked on appellants’ weekly reports to the State. He thought
the Railroad Commission had taken control of the site and had not seen appellants conducting
ongoing operations on the site but had seen a few people conducting “remedial activities.”
O’Neil took water samples in August 2019 at the discharge point and downstream
in Skull Creek and testified that the water did not contain any VOCs “above detection limits or
above any applicable regulatory limit.” A “couple of samples” had “lead and mercury, slightly
above a regulatory limit,” but when those samples were analyzed for the contaminants’ “ability
to leach from a solid into a liquid,” they were “demonstrated to be below regulatory limits.” The
samples had similar TPH results—the levels in the “total analysis that was in the sediment”
exceeded regulatory limits, but when run under the leaching analysis, were “generally at or
below the regulatory limits.” On cross-examination, however, O’Neil conceded that one sample
had a mercury level above “a protective concentration level for a surface water quality standard.”
25
O’Neil testified about various reports submitted by appellants, stating, for
example, that in May 2019, appellants reported that they “had repair and enhancement of the
earthen berm separating the pond east of the Super Sack Number 2 Area and isolating that from
Skull Creek.” O’Neil testified that he had inspected the berms and found them “intact and
functioning as intended.” On cross-examination, however, O’Neil testified that he did not certify
the berms’ construction and that he could not testify that the soils used met the agreed TI’s
requirements. O’Neil also described appellants’ excavation efforts in the super-sack areas and
said it “basically entailed the excavating of material that was described to me and was—appeared
to be consistent with WG-39 material that was mixed with likely road base or other materials that
had been deposited on the property.” Appellants “physically excavat[ed]” 112 loads, “removing
that stuff from the areas that it had been deposited in and bringing it to the surface and
stockpiling,” and built a berm around the stockpile of excavated material in June 2019 to stop
any runoff from migrating into Skull Creek.
In addition, O’Neil said, appellants had started to remove containers from the
property, transporting them to other facilities, and he frequently saw workers trying to pump
liquids from processing areas or other basins and storing them in frac tanks, an effort with a
“fairly high cost” because of equipment costs and rental rates for the tanks and because it must
be done again every time it rains. Reports from September stated that appellants had “completed
removing the free liquids and fluids from the mixing pit . . . and made significant progress in
removing all the free liquids from other areas of secondary containment in the processing area.”
Appellants had also “completed inspections, identified leaking totes, and moved contents to
nonleaking containers”; “completed excavation and stockpiling of all road base mix, soilcontaining elements of degraded WG-39 from Super Sack Area No. 2”; and “completed
26
placement of a protective tarp or plastic over the mixing pit to prevent contact from
precipitation.” He said that in his observation, “almost every single week, there was some bit of
progress that could be specifically identified and noted.” He did not believe that it would have
been possible for appellants to meet the agreed TI’s deadlines because of the quantity of
materials and appellants’ resources. O’Neil believed appellants had been making a good-faith
effort to comply with the agreed TI and did not see evidence of intentional failures to comply.
William Wilder, president and sole employee of Axis Environmental Services,
testified that he had been hired by appellants to “look at the overall picture of what this site
presented in terms of hazards, what type of remediation options there were, and general just
soup-to-nuts approach to what is going on at the facility.” He had been to the facility between
seven and ten times, first in May 2019. He testified that he had not seen any ongoing business
operations at the site and that he had reviewed and verified ESE’s weekly reports. Wilder
thought that appellants were “actively trying to address the remedial concerns” in the agreed TI
but that given “the amount of materials that is currently contained out there,” it would have been
impossible to meet the agreed TI’s deadlines to characterize, remove, and dispose of the
materials. He also testified that appellants had had difficulty finding other facilities that would
work with them to dispose of materials moved from appellants’ site.
Wilder had observed some of appellants’ efforts to excavate the WG-39 and said
that they had several pieces of construction equipment on site and were working “very carefully”
to move the materials “back towards the pad that had been built” and then move it into a
stockpile behind a berm. He asserted that in his observations, the temporary berm was
functioning as intended—there was some light erosion due to rain or runoff but the berms were
later repacked, and he never saw it erode more than eighteen inches from the surface.
27
Furthermore, the vegetation in the 50-Acre Lake area was not showing adverse impacts and was
growing well, and Wilder saw fish and turtles in the water, along with animal tracks in the area,
concluding that “it’s everything you would expect to find in a wetland in this part of Texas.”
Wilder did not believe that the hydrocarbons present in the road base were leaching out into
precipitation. He was asked about why some tests showed TPH when the road base was tested,
and he explained that if a sample has “the particulate road base in it,” the “extraction procedure
required for total analysis” will “create a mechanism to release that material.” However, “[t]hat
mechanism does not exist in nature,” and Wilder believed that the State’s test results were
largely due to road-base materials being “entrained” into the collected samples, leading to
findings of “chemicals of concern.” He did not believe that the road base, left as it is, was
“contributing to the water problem” and “disagree[d] that the road base presents a contaminant.”
He also thought that the early alarming test results from the discharge pipe was “possibly a
singularity” and noted that all discharge has since been stopped.
Bart Huffman, vice president of Huffman Hydrocarbon Engineering, testified that
he was hired by appellants as a consulting engineer and that he had assisted appellants’
predecessor with getting the initial recycling permit, which was later transferred to appellants.
Huffman said that appellants had held two separate permits—a “hundred-acre landfarm
application treatment and then there was the recycling”—but that the two permits were later
combined into a single permit. The permit or permits were first held by Inland Environmental,
then transferred to Boundary Ventures, and later transferred to Inland Recycling. Appellants
were authorized to “bring in Railroad Commission regulated solid waste” and then recycle the
materials and put them through “quality assurance, quality control testing is performed,
compressive strength, stability, and also leaching of volatile organics and heavy metals, as well
28
as pH and leaching of TPH.” If the road base passed the tests, it can be sold, and according to
Huffman, if road base that satisfied the criteria was placed on the property with the
Commission’s knowledge, that was “essentially like putting the same road base out on the roads,
the same road base the counties use.” Huffman “assume[d]” the Commission knew that roadbase material was being provided to the owner of the land on which the facility is located and
said any road base used on the facility’s roads “belonged to” the landowner.
Although there was evidence to the contrary, the court heard testimony that
between May and December 2019, several witnesses saw waste left in conditions that allowed it
to be swept up in rain events and deposited into state waters and smelled strong hydrocarbon and
“volatile” odors throughout the site. Waste continued to be stored in open, leaking, degraded, or
tipped-over containers; spills were left on the ground from visit to visit; wastewater remained at
least periodically in the mixing pit and wash racks, where it would overflow with rain; and road
base remained on the banks of the creek and throughout the facility.
Persons are prohibited from allowing any discharge that causes “pollution of any
of the water in the state,” see Tex. Water Code § 26.121(a)(3), see id. § 26.121(d) (person may
not discharge “any pollutant” or “industrial waste” into any water in state), see also id.
§ 26.001(14) (“‘Pollution’ means the alteration of the physical, thermal, chemical, or biological
quality of, or the contamination of, any water in the state that renders the water harmful,
detrimental, or injurious to humans, animal life, vegetation, or property or to public health,
safety, or welfare, or impairs the usefulness or the public enjoyment of the water for any lawful
or reasonable purpose.”), and the State presented evidence that appellants’ facility had numerous
conditions—the stockpiled or buried WG-39 and frac sand, the mixing pit and wash racks, and
stockpiled road base, not to mention the leaking containers in the chemical-storage area—that
29
already had caused, or at a minimum were likely to cause, such pollution. Given the breadth of
the State’s concerns, the evidence about the facility’s condition, and appellants’ alleged failures
to comply with environmental statutes and rules—as well as the trial court’s earlier TROs and
the agreed TI, we hold that sufficient evidence supported the trial court’s determination that
appellants had violated or threatened to violate state environmental laws such that a temporary
injunction was necessary. See Shorts, 549 S.W.3d at 878. We overrule appellants’ first issue.
Should the TI be Modified?
In their fourth issue, appellants argue that the TI should be modified to eliminate
provisions “that go far beyond maintaining the status quo.” They first argue that the State did
not show that the TI is justified by extreme necessity or hardship and, therefore, that the
mandatory nature of the TI is improper. They further argue that the TI should be “limited to
prohibitory restrictions” that are “narrowly tailored to the alleged statutory violations.”
Injunctive relief can be prohibitive, forbidding conduct, or mandatory, requiring
conduct. See LeFaucheur v. Williams, 807 S.W.2d 20, 22 (Tex. App.—Austin 1991, no writ).
“Generally, the preservation of the status quo can be accomplished by an injunction prohibitory
in form, but it sometimes happens that the status quo is a condition not of rest, but of action, and
the condition of rest is exactly what will inflict the irreparable injury on complainant.” Rhodia,
Inc. v. Harris County, 470 S.W.2d 415, 419 (Tex. App.—Houston [1st Dist.] 1971, no writ).
“Although ordinarily a mandatory injunction will not be granted before final hearing, a trial court
has the power to grant a mandatory injunction at a hearing for a temporary injunction where the
circumstances justify it.” Id. Here, as in Rhodia, “[t]he status quo was an unpolluted [creek],”
and the pollution of Skull Creek is a demonstrated irreparable injury. Id. at 420. Further, the
30
water code explicitly allows a trial court to issue a “prohibitory or mandatory injunction” if
warranted by the facts. Tex. Water Code § 7.032(d).
Appellants complain that they were required to contact their known suppliers and
ask that the stored waste be removed; provide weekly updates of those activities, as well as other
efforts to comply with the TI; promptly respond to any written information requests; and hire an
engineer or geoscientist to conduct a preliminary site investigation, inventory and map waste at
the site, identify and test containers in the chemical-storage area for hazardous waste, ensure that
containers are properly maintained, contain the WG-39, contain road base and other materials
from Skull Creek, construct sufficient berms to separate the creek from 50-Acre Lake, and
conduct a final site investigation. Although appellants assert that those requirements do not
preserve the status quo, we cannot overlook the fact that appellants failed to comply with
abatement and remediation requirements placed on them by the trial court in its earlier orders or
similar requirements agreed to in the agreed TI and conclude that the court did not abuse its
discretion in determining that the actions required of appellants by the TI were necessary to
restore the creek to its unpolluted state, thus preserving the status quo, and to avoid further
irreparable harm in the form of repeated pollution.
As for appellants’ argument that the TI goes further than equity requires, the trial
court heard evidence that appellants continued to accept waste at the site after being ordered not
to, that they buried WG-39 adjacent to the creek rather than remove it, that they built berms out
of sand rather than materials that could withstand rain events, that they were understaffed in their
remediation efforts, and that they allowed degraded and leaking containers to sit in the chemicalstorage area for long periods of time without addressing the leakage. Appellants entered into the
agreed TI but then did not comply, instead seeking modifications of the agreed TI that would
31
transfer appellants’ responsibilities to the Commission and asking that the Commission be
ordered to take actions it was not authorized to take. Appellants referred at the hearings to the
costs associated with the cleanup and indicated that they lack resources to conduct the required
activities. However, in conducting their business, appellants allowed waste to accumulate at the
facility to such an extent that Skull Creek ran black. On this record, they have not shown that
equity requires that they not be ordered to clean up the environmental mess that they created.
We overrule appellants’ fourth issue.
Does the Modified TI Adjudicate the Parties’ Core Dispute?
In their second issue, appellants argue that the trial court erred in issuing the TI
because it had the effect of adjudicating the parties’ core dispute without a trial on the merits. In
their fifth issue, they argue that the TI improperly requires appellants to take affirmative steps
and alter the status quo with no showing of extreme necessity or hardship to justify such a
requirement. We disagree.
In its petition, the State sought a permanent injunction along with civil penalties
against appellants, including Polston personally, under the water code and the natural resources
code, and attorney’s fees and costs. The State asked that the permanent injunction bar appellants
from accepting, storing, or processing any waste at the facility; disposing of any waste, including
by burying it or placing it in bermed areas or basins; discharging any waste at the facility or into
state waters. In addition, the State asked that appellants be ordered to:
• designate a professional engineer or geoscientist as a project manager responsible for
implementing the requirements of the permanent injunction
• immediately start to remove and dispose of all waste, including road base, on the ground
near Skull Creek or any bodies of water connected with the creek; start to remove and
dispose of any aboveground storage containers; remove and dispose of all waste at the
32
facility within 180 days; document all removal, transportation, disposal, and sale of waste
and submit that documentation to TCEQ and the Commission
• submit monthly reports “detailing all actions taken to comply with” the injunction
• “dewater any accumulated liquids” and prevent runoff
• ensure that any excavations be conducted “as necessary to achieve original grade” and
then revegetated as appropriate
• immediately commence a soil and subsurface investigation to determine where
groundwater borings, stratigraphic borings, and monitoring wells should be installed;
install groundwater monitoring wells; and test samples from those wells, submitting
monthly reports of those test results
• immediately start an Affected Property Assessment (APA) that addresses water, soil, and
groundwater at the facility and includes “assessment of the vertical and horizontal extent
of contamination to all Affected Property, including off‐site property”
• prepare an Affected Property Assessment Report (APAR) that satisfies TCEQ’s rules
governing such reports, see 30 Tex. Admin. Code §§ 350.1-.135 (Tex. Comm’n on Env’t
Quality, Texas Risk Reduction Program), and includes groundwater-monitoring results
and an assessment of all actions necessary to clean and control any remaining
groundwater contamination to the satisfaction of TCEQ and the Commission
• upon TCEQ and Commission approval of the APAR, submit a plan “to address closure,
post‐closure care and remediation of water, soil, and groundwater located at the Facility
and associated off‐site impacts”; “remediate all environmental media on all Affected
Property containing chemicals of concern in excess of critical Protective Concentration
Levels”; submit a “Response Action Completion Report,” see id. § 350.95 (Tex. Comm’n
on Env’t Quality, Response Action Completion Report); submit a closure plan in
accordance with TCEQ rules detailing the removal and appropriate disposal of all wastes
and closure of each of the facility’s components; and submit a Final Remedial
Completion Report describing all cleanup activities and documenting the disposition of
all oil and gas waste removed from the site, soil and groundwater sampling tests that
show appellants had met their “cleanup objectives,” and institutional controls (meaning a
legal document placed in the property records notifying the public of usage limitations
placed on the property to protect human health and the environment)
• continue groundwater monitoring sampling and analysis every six months for three years
after the facility’s Final Remedial Completion Report is submitted.
The TI, on the other hand, orders appellants to stop accepting waste; to stop
storing or processing waste in a manner that causes any discharge into state waters; to stop
33
disposing of waste at the site; to stop discharging waste at the site or into state waters; to contact
all known suppliers and ask them to remove their waste to an appropriate facility; to abate and
contain spills and discharges; to hire an engineer or geoscientist to conduct a “preliminary site
investigation, documented in an [APAR],” as to (1) the bed and banks of Skull Creek beginning
at the discharge pipe and extending along appellants’ property line and (2) Super Sack Area 2
and adjacent areas; hire a professional engineer or geoscientist to construct cohesive, compacted
berms to isolate 50-Acre Lake from Skull Creek, conduct a final site investigation, documented
in an APAR; submit a detailed inventory and map of all waste at the site; test and determine
whether any of the containers at the chemical-storage area contain hazardous waste; ensure that
all containers in that area are properly maintained; remove all WG-39 from Super Sack Area 2
and the areas adjacent to Skull Creek, including residues or mixtures, and contain it in covered,
non-leaking containers or impermeable basins; similarly remove and contain “any contaminated
sediment, roadbase, Waste, substances, products, and materials located within” twenty-five feet
of Skull Creek’s bed and banks; and submit weekly reports of their progress.
When the status quo is compliance with environmental laws and the State presents
sufficient evidence to support a finding of a likely violation or threatened violation of those laws,
a trial court must be able to issue an injunction that requires the defending party to take measures
to stop polluting and abate water pollution that has already occurred. See Texas Pet Foods, Inc.
v. State, 529 S.W.2d 820, 829-30 (Tex. App.—Waco 1975, writ ref’d n.r.e.). As this Court has
held, “The status quo was an unpolluted river; not a contaminated stream caused by the wrongful
acts of appellants.” Magnolia Petroleum Co. v. State, 218 S.W.2d 855, 860 (Tex. App.—Austin
1949, writ ref’d n.r.e.); see also Rhodia, 470 S.W.2d at 420 (“The appellees have shown that
irreparable injury is occurring and that a statute is being violated, and they are entitled to a
34
temporary mandatory injunction which will require Rhodia to prevent excessive quantities of
arsenic from polluting the public water in the manner in which the appellees have shown Rhodia
has done so.”).
The record indicates that a full measure of the kinds of waste at the facility is not
known; that unknown waste is stored in open or leaking containers; that the degree to which soil
and groundwater has been contaminated is as yet unknown; that road base and WG-39 remain in
contact with state waters or in conditions that make such contact likely; and that water quality
downstream of the facility has suffered, although appellants did address at least some of that
concern by capping their discharge pipe. The TI requires appellants to take actions, including
conducting studies and constructing berms under the eye of a licensed professional, to determine
the full extent of the waste and contamination and to protect Skull Creek from further pollution,
which would re-establish the status quo of an unpolluted creek and surrounding areas. See
Magnolia, 218 S.W.2d at 860 (“The status quo was an unpolluted river; not a contaminated
stream caused by the wrongful acts of appellants.”). And, as noted by the State, the actions it
seeks in its request for a permanent injunction, which has a forward-looking perspective and
seeks to remove all waste and remediate the site, go well beyond those imposed by the TI, which
seeks to identify, abate, and isolate pollution and contamination that has already occurred at the
site so that further appropriate remediation plans can be developed.
We thus overrule appellants’ sixth issue, which insists that the modified TI
improperly requires them to “take affirmating steps to alter the status quo,” and their second
issue, which argues that the modified TI impermissibly grants substantially all of the relief
35
sought by the State.
14 See West, 212 S.W.3d at 518-19 (“when it is determined that [a] statute is
being violated, it is within the province of the district court to restrain it” (quoting Texas Pet
Foods, 591 S.W.2d at 805)); Magnolia Petroleum Co., 218 S.W.2d at 860 (“courts are not
required to bide their time and wait until the parties see fit to discontinue their unlawful acts”).
Is the TI Overbroad?
In their sixth and final issue, appellants argue that the TI should be reversed or at
least modified because it is overbroad. They argue first that the trial court abused its discretion
in enjoining Boundary Ventures because the State did not request injunctive relief against that
entity. They secondly insist that the TI is overbroad in its definitions of “waste” and the “Site.”
After the agreed TI was signed, the State filed an amended petition adding
Boundary Ventures as a defendant and seeking permanent injunctive relief against all the
defendants collectively, along with all other relief to which the State is entitled. About a month
later, the three appellants other than Boundary Ventures filed their motion to modify the agreed
TI, asking in part that the Commission be ordered to use Boundary’s surety money to work on
14 This case differs from Clint Independent School District v. Marquez, 487 S.W.3d 538
(Tex. 2016). In that case, a group of parents sued, asserting that the way the district distributed
money, a system it had used for years, was illegal. Id. at 543, 557. The parents conceded that
the legality of the system was the lawsuit’s central question, and the supreme court held that the
parents could not “obtain a temporary injunction forcing the district to change its distribution
methodology before a trial on the merits.” Id. at 557. Here, the State sued soon after an acute
pollution event, seeking to stop appellants from discharging waste into state waters and to
require them to make changes at the facility to ensure the pollution did not happen again. The
central question here is not whether the kind of discharge alleged by the State is a violation of
environmental law, nor is there some kind of longstanding status quo under which such
discharges were allowed before being challenged. Appellants may contest whether it was they
who caused the downstream issues or whether their storage of WG-39, road base, or the
unidentified chemicals violates the state’s environmental laws, but given the evidence of the
condition of the facility and the adverse effects downstream, a TI requiring appellants to stop
discharges into or near Skull Creek and to take steps and gather information to address concerns
raised by TCEQ and the Commission is not equivalent to the injunction sought in Marquez.
36
the site. The State submitted a proposed modified TI that included Boundary as an enjoined
defendant, and in the January 2020 hearing, after the State discussed Boundary Ventures’
Commission permit and associated bond and the parties discussed whether and how those funds
could be used at the site, the trial court stated that it was signing the State’s order. At no point in
the hearing or in any later filings did Boundary Ventures argue to the trial court that it could not
be enjoined because the State had not formally made an application for a temporary injunction
against it. As for the TI’s definitions of “waste” and “site,” those definitions are substantially
similar in both the agreed TI and the modified TI.15 Appellants never objected to those
definitions as overbroad before the trial court, either in response to the agreed TI or after the trial
court signed the modified TI, and we note that appellants filed a proposed order modifying the
agreed TI that did not seek to change those definitions. An argument that is not raised before the
trial court is generally considered waived. See Tex. R. App. P. 33.1(a). This includes arguments
related to the breadth of injunctive relief. See DHJB Dev., LLC v. Graham, No. 03-18-00343-CV,
2018 WL 5987150, at *4 (Tex. App.—Austin Nov. 15, 2018, pet. dism’d) (mem. op.) (party
waived error where record did not show it “brought its complaints about the form of the
temporary injunction to the trial court’s attention and obtained a ruling”); Ford v. Ruth,
No. 03-14–00460–CV, 2016 WL 1305209, at *2 (Tex. App.—Austin Mar. 31, 2016, pet. denied)
(mem. op.) (“There is nothing in the record indicating that appellants contested venue or
contended that the permanent injunction was overly broad in district court. Instead, they make
these complaints for the first time on appeal and have, therefore, failed to preserve these issues
15 The two documents define “site” identically, and the definition of “waste” is the
same—“any liquid, gaseous, semisolid, or solid substances that result from any process of
industry, manufacturing, trade, or business,” including “materials that are accumulated, stored, or
processed before or in lieu of being abandoned,” except that the modified TI adds “including ‘oil
and gas waste’ as defined in” the natural resources code and the administrative code.
37
for review.”); Emerson v. Fires Out, Inc., 735 S.W.2d 492, 494 (Tex. App.—Austin 1987, no
writ) (“Although appellants did request the district court to reconsider the order, appellants did
not raise the facial inadequacy of the order. Accordingly, appellants’ motion did not preserve the
error.”). We hold that appellants waived any complaint related to the breadth of the
TI’s definitions.
Appellants similarly never complained to the trial court about the inclusion of
Boundary Ventures in the TI. Moreover, there is no question that the trial court had jurisdiction
over Boundary Ventures, the State specifically pled for permanent injunctive relief in its
amended petition and included a plea for any other relief to which it was entitled, the State
named Boundary Ventures as one of the enjoined defendants in its proposed order, and the water
code and the natural resources codes specifically allow for permanent or temporary injunctive
relief to address a party’s statutory violations. See Tex. Water Code § 7.032(d); Tex. Nat. Res.
Code § 91.003(a). We therefore overrule appellants’ issue related to the inclusion of Boundary
Ventures in the TI and overrule their sixth issue on appeal.

Outcome: We have overruled all of appellants’ issues. We therefore affirm the trial court’s
modified temporary injunction.

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