On Thursday Harris County attorneys went head-to-head with Fortune 500 companies they blame for polluting the San Jacinto River nearly 50 years ago.
With $3.7 billion worth in penalties and attorneys' fees on the line, the county's opening statements in the long-awaited environmental enforcement trial hinged on the responsible companies' intentional abandonment of a former waste dump. The companies counterargument: environmental regulations weren't enforced until well after they started dumping.
The fact of the matter is there are currently 20 acres of toxic paper mill sludge sitting in the San Jacinto River, nicknamed the Waste Pits. They were created when the Pasadena-based Champion Paper contracted with McGinnes Industrial Maintenance Corporation to dispose of its industrial waste in a man-made enclosure inside the river, bounded by clay levees. After the Waste Pits filled, McGinnes elected to abandon them. Over time, carcinogenic chemicals leaked out into the river system.
The corporate defendants in the case are International Paper the now-defunct McGinnes and Waste Management of Texas. Because International Paper inherited Champion Paper and Waste Management inherited McGinnes, the companies' lawyers argued that they shouldn't be liable for the maximum penalty allowed under state environmental laws: $25,000 for every day of pollution.
Attorney Earnest Wotring -- whom Harris County hired amid a storm of complaints from the accused companies before an appeals court ruled that the county is allowed to have outside counsel just as the companies are -- said the defendants certainly need to work with the EPA to actually clean up the site, but that doesn't mean they get a pass on state citations.
In addition to deterring other industrial corporations from dumping toxic waste where ordinary people live and play, the county has indicated that it's suing to compensate damages to recreational and residential areas contaminated by years of leakage from the Waste Pits.
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Lawyers for International Paper, McGinnes and Waste Management say that's not the case. All three companies argued that the lawsuit is about punishment, not remediation.
"We're getting sued for billions of dollars for doing what is right," said Winn Carter of Morgan Lewis and Bockius, who represents International Paper. He added that the responsible companies are all "part of the solution" of cleaning up the Waste Pits as per the EPA's instructions, and the county suit was only an attempt to fatten government wallets.
Barrett Reasoner of Gibbs and Bruns, who represents Waste Management, went on to accuse Harris County of contributing to the release of chemicals in to the San Jacinto River. In the 1990s, the county permitted companies to dredge sand from the river bottom -- Reasoner said that practice undermined impoundments that kept the waste in place.
Mining for sand was indeed unfortunate for all involved. While state agencies may have inadvertently polluted waterways, it also led them to rediscover the Waste Pits in 2005, eventually leading to multiple lawsuits against the paper and waste companies. The county's penalties trial precedes two more cases: an economic loss complaint from Galveston Bay's Vietnamese fishermen and a personal injury suit from residents living closest to the Waste Pits.