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By Richard Connelly
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When the Port of Houston Authority won approval for its $387 million bond election in 1999 to build a Bayport container terminal, it made no mention of the facility on the ballot. Instead, voters were asked to sign off on oblique concepts like "port improvements" and "environmental enhancements."
Opponents of Bayport considered the referendum's language wildly disingenuous, given that the project would add thousands of diesel-spewing trucks to area roads and also potentially damage Galveston Bay.
But it appears the Port really is turning green after all, if perhaps only in the pursuit of money.
The Port is suing a handful of agricultural chemical manufacturers for allegedly allowing a witch's brew of toxic substances to pollute undeveloped property it owns on Greens Bayou, near a large industrial plant on Haden Road. Arsenic, cyanide and DDT are just a few of the contaminants the Port accuses the plant operators of releasing onto its adjacent property over the past five decades.
In an action filed earlier this year, the Port charges that the companies -- GB Biosciences Corporation, Zeneca Ag Products Inc., Syngenta AG, Occidental Chemical Corporation, ISK Magnetics Inc. and others that operated the Haden Road facility at some point over the years -- made every effort to cover up their pernicious activities.
"In addition to concealing the contamination from the Port, the Defendants have consistently and persistently concealed the nature and extent of the contamination from the EPA, TNRCC, and other federal, state and local environmental agencies," the lawsuit says.
The Port is asking state District Judge Caroline Baker for unspecified damages for loss of property value, remediation costs and for protecting against future contamination.
Port spokeswoman Rosie Barrera did not know the value of the affected property, the extent of the pollution or the specific damages sought. She said portions of the four affected tracts were used by the Port as a disposal area for sediments dredged up from the Houston Ship Channel. These sediments themselves are notorious for their toxic content.
What is clear is that Port commissioners appear poised to do whatever it takes to win. They have racked up more than $650,000 in attorney's fees in a case that is still in the preliminary stages.
The Port's stance is a departure for an agency that has a reputation of regularly turning a deaf ear to environmental concerns and has amassed a fairly extensive record of pollution itself.
Harris County Pollution Control has issued at least nine citations to a sewage treatment plant and a shipping terminal operated by the Port. In 1999 the Texas Natural Resource Conservation Commission fined the Port $16,875 for violations at a waste-water treatment facility. The Port has taken a leading role in denouncing the state's smog-reduction plan for the Houston area.
The Port "ought to clean up their own act," says Natalie O'Neill, a Taylor Lake Village official and board member of the Galveston Bay Conservation and Preservation Association. "They really need to enforce regulations for the good of the entire community and not just themselves. Lord knows they have enough of our tax dollars."
In the suit over the Greens Bayou property, several chemical company defendants have retained the services of powerhouse Fulbright & Jaworski, setting the stage for a big legal battle. In court documents, the defendants deny all the accusations made by the Port, which include gross negligence, public and private nuisance, breach of contract and fraud.
In its original court petition, the Port depicts itself as a trusting neighbor that was dumped on and lied to by a succession of polluters, starting with the Diamond Alkali Company, which opened the chemical plant in 1951. (The company later became Diamond Shamrock Company.) Occidental Chemical Company assumed all liabilities for the company in the 1980s, according to court documents. The chemical facility has changed hands several times since the mid-1980s and is now owned by Swiss-based Syngenta.
On more than one occasion a company placed gauges on Port land under harmless-sounding pretexts like wanting to study groundwater patterns, the suit says. The true motive, the Port charges, was to learn the extent of the contamination.
In other instances, companies sought to buy land outright to avoid liability in the event that regulators discovered toxic substances had migrated off-site, among other reasons, the Port says.
The suit contends that GB Biosciences bought land in a 1985 agreement that said the Port would not be liable for cleanup costs if the company polluted remaining Port property. The company, according to the Port, reneged on that contract -- which could conceivably force the Port to pick up the substantial costs for remediation.
"Despite knowing that DDT, arsenic, cyanide and other Hazardous Substances had been disposed of and released from [their operations], the Defendants never warned the Plaintiff ," the lawsuit says.
As early as the 1970s plant operators were aware of DDT and arsenic in Greens Bayou, the suit contends. But it was not until 1999 that the Port learned of the DDT contamination, and then only because Brown & Root was conducting dredging operations in Greens Bayou and found traces of the insecticide in nine of its 11 sediment samples.
The next year, according to court documents, the TNRCC and the Texas Department of Parks and Wildlife found DDT and other hazardous substances in the tissue of Greens Bayou crabs.
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