City Shuts Down Site Threatening its Water Reservoir

City of Cleburne Reaches Settlement to Abate Violations of TCEQ Registration

When TCEQ issued a domestic-septage registration to Harrington Environmental LLC—a company with a history of violating TCEQ regulations—allowing it to dispose of septage on land just upstream from its drinking water reservoir, the City of Cleburne and Johnson County appealed the TCEQ’s decision.  But that appeal takes time to wind its way through the courts.  In the interim, Harrington kept spreading septage, regularly violating the TCEQ registration.

The City and County were not happy to sit back and allow repeated violations while its appeal continued. 

Faced with the threat to its drinking water, the City and County, with support from attorneys at Lloyd Gosselink Rochelle & Townsend, P.C. and the County Attorney’s office filed suit alleging a nuisance and seeking an injunction under Chapter 343 of the Texas Health & Safety Code.

Immediately on filing suit, a temporary restraining order was obtained barring Harrington from violating the registration.  Harrington didn’t comply.  So the City and County went back to court to hold Harrington in contempt.  But more important, with fresh evidence that Harrington couldn’t (or wouldn’t) comply with the registration, the Court modified the injunction to bar all domestic-septage disposal on the property until the time of trial.

The nuisance was abated for the time being.

As litigation continued, the City and County uncovered evidence of routine violations.  As a result, the Court granted summary judgment finding that Harrington had created a nuisance by disposing of domestic septage on saturated soil on 52 occasions over a 23-month period.  Harrington’s violations caused runoff into neighboring waterways that fed into the City’s reservoir.

Had the case gone to trial, the City and County would have been able to prove an additional 150 violations.  At the end of a trial, Harrington would have been enjoined from causing a nuisance and would have been liable for attorneys’ fees.

Rather than go to trial, Harrington settled.  Under the terms of the parties’ agreement, Harrington will surrender its TCEQ registration and agree to never again dispose of domestic septage on the property.

In addition, Harrington agreed to discontinue composting animal waste (e.g., restaurant grease, butcher scraps, and entire carcasses) on the property.  The composting was conducted under a separate TCEQ program and was not part of the lawsuit.  But rather than pay the City’s attorneys’ fees, Harrington opted to give up its right to continue that activity.  Also, both practices—septage disposal and composting—are forever prohibited thanks to an agreed restrictive covenant to be placed on the property.

This is obviously an unusual situation, in which a company with a TCEQ registration flatly refused to abide by the registration’s requirements.  The registration explicitly barred disposal in the rain or on saturated soil.  But Harrington ran a rain-or-shine operation and was a clear threat to a municipal water supply.

In such extreme circumstances, Chapter 343 of the Texas Health & Safety Code provides a powerful tool for counties and property owners to abate a nuisance.  For permittees and registrants operating in compliance, this case confirms the importance of careful and accurate recordkeeping to demonstrate that compliance if called upon to do so.  For neighboring property owners impacted by facilities out of compliance, this case demonstrates how litigation can be used effectively to mitigate or eliminate that impact. 

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The course of proceedings in City of Cleburne and Johnson County v. Harrington Environmental Services, LLC, Cause No. DC-C-2018-00880 in the District Court for the 18th Judicial District of Johnson County, Texas, is public record.  If you would like more information on this case without heading down to the Johnson County Courthouse, feel free to contact Cleburne’s trial attorneys, James Parker (512.322.8578; jparker@lglawfirm.com) and Maris Chambers (512.322.5804; mchambers@lglawfirm.com).