CAUSE NO.

D-1-GN-19-002002

STATE OF TEXAS, § IN THE DISTRICT COURT OF

§
Plaintiff, and §
§
THE LOWER COLORADO RIVER §
AUTHORITY, §
§
§
Intervenor-Plaintiff §
§
v. § TRAVIS COUNTY, TEXAS
§
DAVID POLSTON and INLAND §
ENVIRONMENTAL AND §
REMEDIATION, INC., and INLAND §
RECYCLING, L.L.C., §
§
Defendants. § 53rd JUDICIAL DISTRICT

INTERVENOR-PLAINTIFF LOWER COLORADO RIVER AUTHORITY’S

PETITION IN INTERVENTION

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW Intervenor-Plaintiff Lower Colorado River Authority (“LCRA”) and,

pursuant to Texas Rule of Civil Procedure 60, files its petition to intervene as plaintiff seeking

injunctive and/or other relief against Defendants David Polston, Inland Environmental and

Remediation, Inc., and Inland Recycling, L.L.C. (collectively, “Inland”) and in support of this

Petition respectfully shows the Court the following:

I. The Original Lawsuit

1. Plaintiff the State of Texas (the “State”), by and through its Attorney General, on

behalf of the people of Texas and the Texas Commission on Environmental Quality (“TCEQ”),

filed this lawsuit on April 12th, 2019, in the 53rd Judicial District Court of Travis County, Texas.

In the lawsuit, the State seeks to enforce Texas Water Code Chapter 26 (“Chapter 26”), which

01163409;4
contains statutes controlling the quality of water in the state, and provides for injunctive relief

restraining Defendant Inland from engaging in certain conduct that has resulted in the unauthorized

discharge of waste from its facility into water in the state. Inland has failed to address these

violations and prevent further discharges; consequently, its violations threaten to render water in

the state harmful to the public health and environment. This suit seeks to enjoin Inland’s ongoing

violations and protect the quality of water in the state.

II. Relief

2. Intervenor-Plaintiff seeks injunctive relief against Inland in the form of a temporary

injunction and permanent injunction requiring Inland to cease accepting waste, cease the storage

of such materials in open containers or ponds, and cease all illicit and illegal discharges of waste

into ponds, gravel pits, creeks, or rivers within the jurisdiction of LCRA. LCRA also seeks a

permanent injunction requiring Inland to remediate any and all contamination in the ground or

surface water of Colorado County that it caused, suffered, allowed, or permitted.

III. Parties

3. Plaintiff the State of Texas is represented by Ken Paxton, the Attorney General of

Texas, and may be served with process at the Office of the Attorney General of Texas,

Environmental Protection Division, PO Box 12548, MC-066, Austin, Texas 78711-2548, or

electronically as permitted.

4. Intervenor-Plaintiff LCRA is a political subdivision of the State of Texas, created

under and essential to accomplish the purpose of Section 59, Article XVI, Texas Constitution,

including, but not limited to, the correcting and control of pollution of all groundwater and surface

water of the Colorado River and its tributaries within the boundaries of LCRA.

5. LCRA is authorized to bring this action by virtue of:

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 a. Tex. Water Code §§ 49.066 and 49.211(a); and

b. Tex. Water Code §§ 7.351 and 7.352. LCRA brings this cause of action as
authorized through a formal order of its governing Board of Directors,
issued on April 16, 2019.

6. Defendant David Polston is an individual. He may be served with process at: 1022

Schultz Road, Columbus, Texas 78934, 6254 Highway 71, Altair, Texas 77412, or wherever he

may be found. He is represented by Victor Cardenas Jr, Darrel L. Barger, and Pryce G. Tucker of

Hartline Barger, L.L.P. and James D. Smith of the Smith Law Firm, PLLC.

7. Defendant Inland Environmental and Remediation, Inc. is a foreign corporation

organized and existing under the laws of Delaware. Its principal office is located at 1022 Schultz

Road, Columbus, Texas 78934. Defendant Inland Environmental and Remediation, Inc.’s

President is Defendant David Polston. Defendant Inland Environmental and Remediation, Inc.

may be served with process through its registered agent, J. Winston Krause, at 504 West 13th Street,

Austin, TX 78701, or wherever J. Winston Krause may be found. Defendant is represented by

Victor Cardenas Jr, Darrel L. Barger, and Pryce G. Tucker of Hartline Barger, L.L.P. and James

D. Smith of the Smith Law Firm, PLLC.

8. Defendant Inland Recycling, L.L.C. is a Texas limited liability company. Its

principal office is located at 1022 Schultz Road, Columbus, Texas 78934. Defendant Inland

Recycling, L.L.C. may be served with process through its President and registered agent, David

Polston, at 1022 Schultz Road, Columbus, Texas 78934; 6254 Highway 71, Altair, Texas 77412;

or wherever he may be found. Defendant is represented by Victor Cardenas Jr, Darrel L. Barger,

and Pryce G. Tucker of Hartline Barger, L.L.P. and James D. Smith of the Smith Law Firm, PLLC.

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 IV. Jurisdiction and Venue

9. This Court has jurisdiction over the case pursuant to Texas Water Code §§ 7.032,

7.105, 7.108, 7.351(a), 49.066, and 49.211(a), and Texas District Local Law Code §§ 8805.004(k)

and (q).

10. Venue for this suit is proper in Travis County, Texas pursuant to Texas Water Code

§ 7.105 and Texas Civil Practice and Remedies Code § 15.002(a).

V. Statement of Interest

11. LCRA is a river authority that was created by the Texas Legislature in 1934. It

provides power, manages the lower Colorado River, and builds and operates transmission lines

across the state. The state of Texas owns the water within the rivers of Texas, and LCRA manages

the water of the lower Colorado River. The state issues water rights permits that allow permit

holders to use a specified amount of water each year from the river and certain lakes. LCRA holds

a large block of water rights in the Colorado River basin, and it sells some of the water permitted

to it to cities and other entities that provide water to Texans for municipal, agricultural, and

industrial uses. LCRA’s jurisdiction includes both Skull Creek and the portion of the Colorado

River that flows through Colorado County.

12. Defendant Inland operates a waste processing facility in Colorado County, Texas.

It receives a variety of waste including oil and gas waste, hazardous waste, and industrial solid

waste, and processes it into material used as road base. The types of materials accepted at the

facility include used oil, heavy oil, tank bottoms, commercial chemical products, and combustible,

flammable, and corrosive liquids. Inland also operates a washout operation at the facility where

truck tires, plastic totes, and other storage materials that have come into contact with waste are

washed. The facility borders and abuts Skull Creek, which flows a short distance from this facility

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in a generally easterly direction to its confluence with the Colorado River. Various types and

containers of petroleum waste appear to be received at the Inland facility. This waste is stored

either in containers, crates, totes, or upon information and belief, open quarry pits in and around

the Inland facility.

13. The gravel pits at the Inland facility are abandoned. The groundwater table in this

area is shallow, and the abandoned gravel pits have, over time, filled with water. These pits fill

with either groundwater or surface water runoff, and are believed to be interconnected to the

shallow groundwater in the area which, in turn, is interconnected to Skull Creek and the Colorado

River. The abandoned quarry pits at the Inland facility have been observed to contain the same

black water and oily sheen that has been recently observed in Skull Creek. Upon information and

belief, waste products received at the Inland facility have infiltrated some number of these gravel

pits and/or other ponds at the facility, and are either leaking into Skull Creek and the Colorado

River through the shallow groundwater table, or running off as surface water to the creek and river.

There do not appear to be any buffers between the waste material stored at the Inland facility and

Skull Creek.

14. On or about February 8, 2019, a section of Skull Creek, a tributary of the Colorado

River – both of which are within the jurisdiction of LCRA – was observed to have turned black in

color, and to emit a foul, chemical odor. Dark particulate matter was observed on the edge of the

creek. These conditions were noted to occur in Skull Creek approximately at the site of Defendant

Inland’s facility in Colorado County, Texas, and also in Skull Creek downstream of Inland’s

facility. At or about this same date, a fish kill was noted in Skull Creek and/or the Colorado River

at the same locations.

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 15. After this initial occurrence, Skull Creek was again observed to be black in color

and foul in odor on February 13th, 2019 and March 22, 2019. As a result of these observed

conditions, and in response to complaints and concerns expressed by residents in the area, LCRA

has taken several water samples from February 8, 2019 through the present from locations on or

near Skull Creek, including samples in the Creek both upstream and downstream of Inland’s

facilities, at or near the creek’s confluence with the Colorado River, and on the Colorado River

both upstream and downstream of its confluence with Skull Creek. These samples have indicated

reportable, and potentially unsafe, levels of hydrocarbons and other pollutants in Skull Creek

around and downstream from the Inland facility in Altair, including ethylbenzene, xylene, and

toluene. Conversely, the water samples taken upstream of the Inland facility have not tested

positive for these same pollutants.

16. Upon information and belief, conditions have remained as described above since

March 22. Additional samples were taken on or around March 28, 2019 and have been taken

regularly through the date of this filing. LCRA’s testing results continue to show unhealthy levels

of hydrocarbons in Skull Creek at or below the Inland facility on Skull Creek.

17. LCRA has retained an environmental expert, hydrogeologist Phil Bullock P.G. of

Wood Environment & Infrastructure Solutions, Inc., to review the analytical results for the water

samples the LCRA has collected from Skull Creek and the Colorado River. Additionally, on April

22, 2019, Mr. Bullock conducted a site investigation of the Inland facility, and collected water,

soil, and sediment samples from various locations within the facility, and in and along Skull Creek,

including a sample taken directly from the discharge pipe leading from the Inland facility to Skull

Creek. The field and laboratory analytical results of Mr. Bullock’s testing show that the water

contained in Inland’s outfall pipe, which discharges from the Inland Facility directly into Skull

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Creek, greatly exceeds the TPDES General Permit Effluent Limitations contained in TCEQ

General Permit TXG830000 (“Inland’s Permit”) for pH, Benzene, Total BTEX (benzene, toluene,

ethylbenzene, and total xylenes), Polyaromatic Hydrocarbons (“PAHs”), and Total Petroleum

Hydrocarbons (“TPH”). Mr. Bullock’s testing of the water in Skull Creek downstream of the

outfall at US 71 also showed levels of Benzene, Total BTEX, and PAHs that exceeded Inland’s

Permit limits. Conversely, the field and laboratory water sample testing conducted by Mr. Bullock

less than 600 feet upstream of the Inland facility’s outfall pipe showed no exceedances of these

same hydrocarbon contaminants.

18. Intervenor-Plaintiff knows of no other facility discharging waste containing

hydrocarbons or operating a facility that stores, processes, recycles, or injects waste containing

hydrocarbons in the area where the color and odor of Skull Creek have been observed in the

manner described above. The materials observed and tested in Skull Creek as described above

flow into the Colorado River, where LCRA operates a number of water intake facilities for the

benefit of its wholesale water customers. Numerous other agricultural, municipal, and industrial

users located downstream of the Inland facility also rely on the Colorado River for their water

needs and for recreation. Unless Intervenor-Plaintiff obtains the relief sought in this litigation, its

interests and those of LCRA’s wholesale water customers will continue to be harmed.

VI. Causes of Action

1. TEXAS WATER CODE VIOLATIONS

19. Intervenor-Plaintiff incorporates by reference the above-stated paragraphs.

20. “To discharge” means “to deposit, conduct, drain, emit, throw, run, allow to seep,

or otherwise release or dispose of, or to allow, permit, or suffer any of these acts or omissions.”

Tex. Water Code § 26.001(20).

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 21. “Industrial Waste” means “waterborne liquid, gaseous, or solid substances that

result from any process of industry, manufacturing, trade, or business.” Id. at § 26.001(11).

22. “Waste” means sewage, industrial waste, municipal waste, recreational waste, and

agricultural waste, as defined in Tex. Water Code § 26.001(6).

23. A “person” includes “corporation, organization, government or governmental

subdivision or agency, business trust, estate, trust, partnership, association, and any other legal

entity.” Tex. Gov’t Code § 311.005(2).

24. “A person may not cause, suffer, allow, or permit a violation of a statute within the

[TCEQ’s] jurisdiction or a rule adopted or an order or permit issued under such statute.” Tex.

Water Code § 7.101.

25. Intervenor-Plaintiff is authorized to file suit for injunctive relief for violations of

Chapters 7 and 26 of the Texas Water Code, and Commission rules and orders promulgated under

these statutes. Id. at §§ 7.105, 7.351.

26. Intervenor-Plaintiff is also entitled to recover its attorney’s fees, court costs and

investigative costs in relation to this proceeding. Tex. Water Code § 7.108.

27. Texas Water Code § 26.121(a) provides that “[e]xcept as authorized by the [Texas

Commission on Environmental Quality, or the “commission” or “TCEQ”], no person may: (1)

discharge sewage, municipal waste, recreational waste, agricultural waste, or industrial waste into

or adjacent to any water in the state; (2) discharge other waste into or adjacent to any water in the

state 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, unless the discharge complies with a

person’s: (A) certified water quality management plan approved by the State Soil and Water

Conservation Board as provided by Section 201.026, Agriculture Code; or (B) water pollution and

01163409;4 8
abatement plan approved by the commission; or (3) 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 . . ..” Inland violated Texas Water

Code § 26.121(a) when it caused or allowed pollution to enter into Skull Creek and/or the Colorado

River, which are waters of the state.

28. Texas Water Code § 26.121(c) provides that “[n]o person may cause, suffer, allow,

or permit the discharge of any waste or the performance of any activity in violation of this chapter

or of any permit or order of the commission.” Inland violated Texas Water Code § 26.121(c) when

it discharged or allowed to be discharged waste into the water of the state.

29. Inland violated Texas Water Code § 7.101 and § 26.121 by emitting contaminants

into Skull Creek and/or the Colorado River. Each contaminant, emission point, and day are

separate violations.

2. APPLICATION FOR TEMPORARY INJUNCTION

30. Intervenor-Plaintiff requests this Court to issue a Temporary Injunction requiring

Inland to cease accepting waste products at its facility and to cease illicit discharge of waste

products into state waterways that it caused, suffered, allowed, or permitted. Texas Water Code §

7.351(a) authorizes Intervenor-Plaintiff to seek injunctive relief for violations of the Water Code

and TCEQ Rules.

31. It is probable that Intervenor-Plaintiff will prevail on the merits. For the reasons

described above, the facts and law are on Intervenor-Plaintiff’s side.

32. The harm that will result if the temporary injunction is not issued is imminent. The

conditions created or permitted by Inland resulting in pollution that is introduced to Skull Creek

and the Colorado River is ongoing. The injury to Intervenor-Plaintiff if Inland continues the

01163409;4 9
conduct described above would outweigh any injury the injunction might cause Inland, and

issuance of the injunction would serve the public interest in protecting the waters of Skull Creek

and the Colorado River.

33. The harm that will result if the injunction is not issued is irreparable. The conditions

created or permitted by Inland resulting in unauthorized pollution that is introduced to Skull Creek

and the Colorado River is ongoing, and will continue unless injunctive relief is issued.

34. Intervenor-Plaintiff has no other adequate remedy at law but for injunctive relief in

order to remedy the harm caused by Inland.

35. The temporary injunction is necessary to preserve the status quo. The purpose of a

temporary injunction is to preserve the status quo of the litigation’s subject matter pending a trial

on the merits. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). Injunctive relief is

appropriate to preserve the status quo so that unauthorized and/or non-permitted pollutants are not

introduced into the Colorado River or its tributaries while the court determines the issues raised in

this proceeding.

36. Intervenor-Plaintiff is a governmental entity, and is therefore exempt from the

requirement under Texas Rule of Civil Procedure 684 that it post a bond.

37. Intervenor-Plaintiff requests a temporary injunction directing Inland, its employees,

agents, successors, and assigns to be ordered to:

(1) Cease and prevent all discharges of Waste, as that term is defined in the Tex. Water

Code § 26.001(6) and footnote 2 of the Original Petition and Application for Temporary

Restraining Order, Temporary Injunction, and Permanent Injunction filed by the State of Texas

(the “Petition”) in this court on April 12, 2019;

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 (2) Cease accepting any Waste at the Inland facility for storage, processing, or disposal,

except as currently authorized by the TCEQ;

(3) Contain all Waste at the Inland facility in covered containers with no leaks, including

from tanks, barrels, drums, and totes;

(4) Drain liquid-form Waste from open-air containment basins at the Inland facility

(including the basin identified in Exhibit F, Attachment 8 to the Petition) and place the Waste in

covered containers without leaks, including tanks, barrels, drums, and totes;

(5) Cease waste-vessel washout operations unless all liquid Waste is completely contained

within a washout area on site; and

(6) be enjoined from destroying any records pertaining to the Inland facility and from

removing any records from the Inland facility or other locations where such records are kept in the

ordinary course of business.

3. APPLICATION FOR PERMANENT INJUNCTION

38. Intervenor-Plaintiff asks this court to set its request for a permanent injunction for

a full trial on the merits and, after the trial, issue a permanent injunction against Inland so that the

above temporary injunctive relief be rendered permanent, and seeking remediation by Inland of all

conditions that resulted in unauthorized waste discharges into any state waterway.

39. Further, the conditions described above will continue to exist unless injunctive

relief in the form of remediation of pollution on-site on Inland’s property is ordered.

VII. Conditions Precedent

40. All conditions precedent to Intervenor-Plaintiff’s claims for relief have been

performed or have occurred.

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 VIII. Request for Disclosure

41. Under Texas Rule of Civil Procedure 194, Intervenor-Plaintiff requests that Defendants

disclose the information or material described in Rule 194.2.

PRAYER

For these, Intervenor-Plaintiff prays for the following:

a. That this Court issue a temporary injunction against Inland as requested herein by
Intervenor-Plaintiff and by the State of Texas;

b. That upon final trial in this cause, the Court grant a permanent injunction as
requested herein by Intervenor-Plaintiff and by the State of Texas;

c. That upon final trial in this cause, the Court grant Intervenor-Plaintiff its reasonable
attorney’s fees, and reimbursement for Court costs and investigative fees in connection
with this action and any appeal;

d. That upon final trial in this cause, the Court grant Intervenor-Plaintiff pre-judgment
and post-judgment interest as allowed by law; and

e. That the Court grant such other and further relief to which Intervenor-Plaintiff may
be justly entitled.

Respectfully submitted,

By: _/s/ Gunnar P. Seaquist

GUNNAR P. SEAQUIST
Texas Bar No. 24043358
gseaquist@bickerstaff.com

WILLIAM DUGAT
Texas Bar No. 06173600
bdugat@bickerstaff.com

JOSHUA KATZ
Texas Bar No. 24044985
jkatz@bickerstaff.com

BICKERSTAFF HEATH
DELGADO ACOSTA LLP
3711 S. MoPac Expressway
Building One, Suite 300
Austin, Texas 78746

01163409;4 12
 Telephone: (512) 472-8021
Facsimile: (512) 320-5638

ATTORNEYS FOR INTERVENOR-

PLAINTIFF LOWER COLORADO RIVER
AUTHORITY

CERTIFICATE OF SERVICE

I hereby certify that on May 2, 2019, a true and correct copy of the foregoing document
was served upon all counsel of record via electronic filing service provider and/or email:

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

DARREN L. MCCARTY
Deputy Attorney General for Civil Litigation

PRISCILLA M. HUBENAK
Chief, Environmental Protection Division

PHILLIP LEDBETTER
Assistant Attorney General
Phillip.Ledbetter@oag.texas.gov

J. AMBER AHMED
Assistant Attorney General
Amber.Ahmed@oag.texas.gov

AMY RODRIGUEZ
Assistant Attorney General
Amy.Rodriguez@oag.texas.gov

OFFICE OF THE ATTORNEY GENERAL OF

TEXAS ENVIRONMENTAL PROTECTION
DIVISION
P.O. Box 12548, MC-066
Austin, Texas 78711-2548
Telephone: (512) 463-2012
Facsimile: (512)-320-0911

ATTORNEYS FOR THE STATE OF TEXAS

01163409;4 13
 VICTOR L. CARDENAS JR.
vcardenas@hartlinebarger.com

DARREL L. BARGER
dbarger@hartlinebarger.com

PRYCE G. TUCKER
ptucker@hartlinebarger.com

HARTLINE BARGER LLP

1980 Post Oak Blvd., Suite 1800
Houston, Texas 77056
8750 North Central Expressway, Suite 1600
Dallas, Texas 75231

JAMES D. SMITH
Jim@smithtexaslaw.com

SMITH LAW FIRM

550 Westcott Street, Suite 50
Phone: (713) 652-3200
Fax: (713) 652-3201

ATTORNEYS FOR DAVID POLSTON,

INLAND ENVIRONMENTAL AND
REMEDIATION, INC., AND INLAND
RECYCLING, L.L.C.

By: _/s/ Gunnar P. Seaquist

01163409;4 14
 VERIFICATION

STATE OF TEXAS §
§
COUNTY OF TRAVIS §

BEFORE ME, a Notary Public for the State of Texas, personally appeared Bryan Cook, on
behalf of Intervenor-Plaintiff, Lower Colorado River Authority, who after identifying himself and
being duly swom by me deposed and said that he has read the foregoing and that the factual
statements set forth in paragraphs 11 through 16 and 18 therein are true, to the best of his personal
knowledge and belief, or based upon information obtained in public records or other sources that
he believes to be reliable.

Bryan Cook, LCRA Manager of Water Quality Protection

SWORN AND SUBSCRIBED BEFORE ME ON THIS l:-Lday Ofrn~} 2019

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STATE OF TEXAS §
§
COUNTY OF TRAVIS §

BEFORE ME, a Notary Public for the State of Texas, personally appeared Phil Bullock,
P.G. on behalf of Intervenor-Plaintiff, Lower Colorado River Authority, who after identifying
himself and being duly sworn by me deposed and said that he has read the foregoing and that the
factual statements set forth in paragraph 17 therein are true, to the best of his personal knowledge
and belief, or based upon information obtained in ublic records or other sources that he believes
to be reliable.

Phil Bullock, Wood Environment & Infrastructure

Solutions, Inc
-rd
SWORN AND SUBSCRIBED BEFORE ME ON THIS d day Of~019
••'"'..~Y~~Vt;", REBECCA ANN VRAGEL
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01163409;4 15