Tag Archive for: pollution

Damn the Downstream Consequences, Colony Ridge Expansion Continues Relentlessly

Damn the downstream consequences, including sediment pollution, increased flood risk and monstrous dredging costs. Colony Ridge, the controversial 30+ square-mile, Liberty County development that markets to Hispanics – while flaunting drainage, environmental and fire regulations – is clearing and paving thousands of additional acres.

Not even Google Earth can keep up with the developer’s relentless expansion. On 8/12/23, I flew over Colony Ridge in a helicopter and found huge areas where 3-week-old satellite imagery was already hopelessly out of date.

Google Earth image from 7/18/23. Red/yellow highlighted areas changed radically within three weeks.


With the exception of areas protected by the Houston-Conroe and Tarkington Bayou Mitigation Banks, the highlighted areas above have largely been cleared and/or paved.

The RED area now has paving not visible in the satellite image. The YELLOW area was being cleared and paving was just starting even though the image shows none of that. So what do these areas look like from a few hundred feet?

Pictures Taken 8/12/23 over Red Area

I shot the four pictures below on 8/12/23. They represent dozens of others. The red area already has most streets, but no fire hydrants.

Pictures Taken over Yellow Area

The two pictures below show some of the development activity taking pace in the yellow area.

Looking west across newly cleared area.
Looking N at part of Colony Ridge expansion.

What kind of homes will go here? To predict the future, look to the past.

Homes on Parade

Colony Ridge is the world’s largest trailer park. One Plum Grove resident who lives near a northern entrance to Colony Ridge says she routinely sees up to seven mobile homes per day going into the development – seven days per week.

It’s hard to know exactly how many new homes arrive each day, because there are other entrances. But if you assume the max for this one entrance, 50 homes a week times 52 weeks makes up to 2600 homes per year.

Colony Ridge Expansion
Manufactured home making its way through the main commercial area of Colony Ridge.
Room with a view…of severe erosion.

Note the erosion in photos above and below. It will make its way downstream into the East Fork San Jacinto. These ditches are typical of Colony Ridge. The eroded sediment will reduce conveyance of the river and contribute to flooding.

Poverty: The Mother of Pollution

Ghandi once said, “Poverty is the mother of pollution.” That’s certainly the case here. But I would modify the saying. While poverty may be the mother of pollution; greed is the father.

The poverty of the residents doesn’t cause sediment pollution. But a business plan built on high-interest-rate, owner financing that targets impoverished people with few options does.

The developer seems to have found a target market that is less concerned with their environment than survival.

It’s a market ripe for exploitation where corners can be cut. Residents have few options and can’t complain.

And the developer shows little interest in changing a business model that fuels relentless expansion and growth. Damn the downstream consequences.

In virtually every area I have photographed, he has not planted vegetation on the banks of the channels. Nor has he used silt fences or installed backslope interceptor swales to reduce erosion as Liberty County regulations require.

Instead of the developer bearing those costs, downstream residents in the Lake Houston Area do. Since Harvey, the Army Corps, Harris County and City of Houston have spent more than $220 million of your tax dollars to dredge excess sediment shed from rivers of mud like this.

Colony Ridge drainage ditch.
Working drainage is a luxury.

The poverty in Colony Ridge is crushing. I’ve seen people sleeping in tents trying to save enough money to buy a camper to live in.

No bathroom in sight. Do Liberty County health codes really allow this?
Christmas dinner. Enlargement of this photo from Christmas 2020 shows food on the table in the foreground.
One small part of Colony Ridge. The market for a piece of the American dream stretches endlessly in Liberty County.

The estimated population of Colony Ridge is now greater than the three largest cities in Liberty County (Cleveland, Dayton, and Liberty) put together. No one knows what the population is with certainty because of the large number of undocumented aliens who did not participate in the last census.

And the Colony Ridge developer is expanding into Harris and Montgomery Counties. ReduceFlooding will monitor progress of those areas to see if they, too, contribute to sediment accumulation, dredging costs, and flooding.

Posted by Bob Rehak on 9/9/23

Posted by Bob Rehak 2202 Days since Hurricane Harvey

The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.

Approximately 1,000 Plaintiffs File Suit Against Sand Mines in Harvey Flooding

On February 20th of this year, approximately 1,000 plaintiffs filed a 118-page lawsuit against 55 sand mining companies in the San Jacinto River Basin. Plaintiffs allege that the miners harmed them by decreasing the capacity and depth of Lake Houston and its tributaries by wrongfully discharging and negligently allowing the release of materials into waterways. That reduction of capacity, they say, contributed to flooding their homes and businesses.

Western half of LMI River Road mine in floodway and flood plain of San Jacinto West Fork. Note also in foreground how the mine undermined five pipelines carrying highly volatile liquids.

Background

To support their claims (¶613), plaintiffs cite violations of Texas Commission on Environmental Quality (TCEQ) regulations and the U.S. Clean Water Act. They claim:

  • Excessive, unauthorized discharge of silt into waterways
  • Failure to:
    • Obtain stormwater discharge permits
    • Prevent unauthorized discharges
    • Minimize generation of dust and off-site tracking

Past and Present Activities Cited

Some defendants, they say, operated above permit limits and others operated without any permits at all (¶614).

Plaintiffs say (¶615) that defendants have operated immediately adjacent to various waterways and in the flood plain, clearcutting all vegetation, and digging pits within feet of the riverbanks. Thus, there are no real barriers between mines and the rivers, they claim. Further, they allege that defendants have no plans in place for protection and preservation of their pits and loose sand during flood events, which occur frequently.

Then Came Harvey

Hurricane Harvey, they say, inundated mines and “thousands of acres of sand washed downstream, clogging the rivers and lakes, resulting in flood waters moving outside the banks and outside the flood plain, causing hundreds of millions of dollars in damages.”

Washed out road INSIDE sand mine during Harvey.
Submerged sand mines in the floodway of the San Jacinto West Fork during Hurricane Harvey in 2017

Alleged Violations of Water Code

The defendants had a duty to implement procedures to reduce the discharge of sediment into waterways, but did not, according to the plaintiffs. Thus, the proximate cause of plaintiffs’ injuries involved negligence and negligence per se. Defendants allegedly breached their duties under sections 11.086, 26.039, and 26.121 of the Texas Water Code, thus causing flooding and damage to plaintiffs’ property.

To prove negligence, personal injury plaintiffs must show that the defendants’ conduct fell below the applicable standard of care and that their actions were the actual and proximate cause of harm. 

In cases of negligence per se, defendants’ actions are assumed to be unreasonable if the conduct violates an applicable rule, regulation, or statute. That’s why lawyers cite the Texas Water Code, plus TCEQ and EPA regulations.

  • 11.086 of the Texas Water Code provides that no person impound the natural flow of surface waters, or permit impounding to continue, in a manner that damages property of another by the overflow of the water diverted or impounded.
  • 26.039 specifies that mine operators must notify the TCEQ of accidental discharges or spills that cause or may cause pollution as soon as possible.
  • 26.121 prohibits discharge of pollutants. Both the EPA and TCEQ consider sediment a pollutant.

Specific Omissions

Specific omissions, say the plaintiffs, include failing to:

  • Locate sand mines outside of floodways
  • Increase the width of dikes
  • Decrease the slope of dikes
  • Control erosion with vegetation
  • Replant areas not actively being mined
  • Protect stockpiles from flooding
  • Mine only above the deepest part of the river
Flooding from Hurricane Harvey in Kingwood’s Town Center where 100% of businesses were disrupted, most for approximately a year. Some still have not reopened. Photo by John Knoezer.

Nuisance Claim

The plaintiffs also allege nuisance. Under Texas law, nuisance refers to a type of legal injustice involving interference with the use and enjoyment of property. Specifically, plaintiffs say that the defendants’ negligent conduct caused paintiffs’ flooding, thus depriving them of the use of their homes.

Complaint against Forestar by Barrington Residents

On page 108, a subset of plaintiffs (those who live in the Barrington), lodge a complaint against Forestar (USA) Real Estate Group Inc. They allege that Forestar developed, marketed and sold homes in the subdivision without any standards for determining the elevation of a house relative to flood risk.

The Long Ride to Safety During Harvey. Barrington Photo by Julie Yandell.
The Long Ride to Safety During Harvey. Barrington Photo by Julie Yandell.

“Despite having actual knowledge of the possibility of flooding in the Barrington Subdivision, Forestar did not advise homebuyers to purchase flood insurance,” says the complaint (¶640). “Nor did Forestar advise the residents of the Barrington Subdivision of its location on a floodplain, or that their elevations were changed due to lots being filled with dirt” when residents purchased homes.

Nevertheless, the complaint continues (¶643), homes were built at an “unreasonably low” elevation, given their location near the West Fork San Jacinto. “Forestar knew, or should have known, that houses needed to be built at an elevation adequate to prevent and/or reduce the likelihood of flooding.”

Clean out after Harvey in the Barrington. By Joy Dominique.
Clean out after Harvey in the Barrington. By Joy Dominique.

Damages Alleged

Plaintiffs allege damages that include:

  • Cost of repairs to real property
  • Cost of replacing personal property
  • Lost of use of real and personal property
  • Diminution of market value
  • Loss of income, business income, profits and business equipment
  • Loss of good will and reputation
  • Consequential costs, such as loss of time from work and alternate living expenses
  • Mental anguish
  • Pre- and post-judgement interest
  • Court costs

Conscious Indifference and Gross Negligence

¶658 asserts that the conduct of all defendants (sand mines and Forestar) qualifies as gross negligence under Texas law. The plaintiffs say that the defendants acts of omission involved an extreme degree of risk, considering the probability and magnitude of harm to others. Plus, “Defendants had actual subjective awareness of the risk involved in the above described acts or omissions, but nevertheless proceeded with conscious indifference to the rights, safety and welfare of plaintiffs and others.”

Where Case Stands

129th District Court Judge Michael Gomez signed a docket control order on 2/28/2020 that calls for:

  • All parties in the suit to be added and served with notice by 8/19/2020
  • Close of pleadings and start of mediation on 12/16/2020
  • End of discovery on 1/15/2021
  • All motions and pleas heard by 1/15/2021
  • Trial, if necessary, on 2/15/2021

To date, there have been several motions to transfer venue, dismiss the case, and change the judge.

Only Triple PG Sand Development, LLC has filed an answer to the plaintiffs’ claims; the company filed a general denial.

In a separate case, the Attorney General of Texas is suing Triple PG for failing to prevent and repair breaches in dikes that resulted in repeated unauthorized discharges of process wastewater and sediment into Caney Creek. Caney Creek joins the East Fork San Jacinto just downstream from Triple PG. Triple PG currently operates under an injunction that bars it from dredging.

Breach of Triple PG mine into Caney Creek and the headwaters of Lake Houston

Editorial Opinion

If successful, this case may force sand mines to operate more responsibly, now and in the future. For instance, it might force them to move farther back from rivers and out of floodways. Having taken thousands of photos of leaking sand mines from the air since Harvey, in my opinion, that might benefit everyone, not just the plaintiffs.

Giant sand bar at the mouth of the West Fork which backed water up through much of Kingwood, Atascocita and Humble.
Mouth bar on the East Fork San Jacinto grew by thousands of feet during Harvey and Imelda. Downstream from Triple PG and Texas Concrete Mines.

To read the entire lawsuit, click here.

Posted by Bob Rehak on August 2, 2020

1069 Days after Hurricane Harvey

The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.

Insurance Company to Sand Miner: Defend Yourself, We’re Not Responsible for Pollution

On 4/9/2020, Everest National Insurance company filed a lawsuit in US District Court for the Southern District of Texas, against one of its policy holders, Megasand, Inc. Everest wants a declaratory judgment stating that it is not responsible for the defense of its client, nor for any settlements or judgments that may arise from underlying cases that it specified (see below).

Courthouse News Service Alert

Yesterday, a local lawyer, Steven Selbe, noticed an alert from the Courthouse News Service (CNS) and, in turn, alerted me.

CNS said, “Megasand Enterprises is a defendant in several Harris County Court lawsuits in which residents claim their homes flooded in August 2017 because Megasand and other gravel mining companies negligently dumped sediment into Spring Creek and the San Jacinto River, reducing the waterways’ capacity to absorb flooding caused by Hurricane Harvey. Plaintiff seeks a declaration it does not have to defend nor indemnify Megasand against the litigation.”

Underlying Cases

After Hurricane Harvey, hundreds of residents in the upper San Jacinto River watershed banded together in several lawsuits against sand mines. The suits allege that mines located near the river and its tributaries discharged silt and sediment without authorization. That, they claim, reduced the ability of the river and Lake Houston to handle floodwaters, which in turn contributed to the flooding of their homes and businesses. The first lawsuit alleges nuisance, negligent conduct, gross negligence, and violation of the Texas Water Code Section 26.121. It names Megasand as a defendant. Several subsequent lawsuits were consolidated with this one.

Another suit filed this February represents 437 plaintiffs and 55 defendants, also including Megasand. This suit alleges negligence and negligence per se. Negligence per se is the unexcused violation of a statute. The suit alleges, in part, that defendants owed a duty to Plaintiffs to implement procedures to reduce the discharge of sediment, but did not.

Impact if Everest is Successful

This is not good for the folks who actually want to recover money, but may put some sand mines out of business. The insurance company says that Megasand’s policy does not cover pollution. Therefore, Everest wants to stop paying for Megasand’s defense. If the judge agrees, Everest would not have to pay for any settlements, judgements, or legal fees.

Says Selbe, “The good thing if you are an insured being defended is that your defense fees and costs are usually paid by the insurance company and often the insurance company eventually pays to settle. In this case, the insurance company wants out of the box altogether. That’s bad for Megasand. It will have to pay to fight this lawsuit and if it loses, will have to pay to defend the flood cases and any judgments or settlements.”

Mouth bar of the San Jacinto West Fork. Photo taken on 9/14/2017, two weeks after Harvey. More than 4000 structures flooded behind this blockage.

Even though Harris County courts are trying the underlying lawsuits, Everest filed its suit against Megasand in federal court. The insurance company is incorporated in Delaware and the sand company in Texas.

Reading Everest’s policy agreement with Megasand may cause other insurers and insureds to review their own policies. If sand miners cannot get insurance because of their current business practices, it may force them to modify their practices to reduce risk.

Basis for Everest Claims

The Everest suit claims, in part:

  • “Our right and duty to defend end when we have used up the applicable limit of insurance…”
  • The insurance does not apply to…property damage that is “expected“ from the standpoint of the insured.
  • The insurance also does not apply to “pollution” and the “processing or treatment of waste.”

Stepen O. Venable of Walker Wilcox Matousek LLP represents Everest National Insurance Company.

It’s not clear what triggered the Everest suit at this time. Plaintiffs filed the first of the underlying suits in 2018.

Editorial Opinion

Dozens of posts on this blog have documented discharges from sand mines. I have so many aerial photographs that I have personally concluded that pollution is part of most mines’ normal business practices. If caught, mines simply pay a slap-on-the-wrist fine.

Since mines were forced to register in 2011, the average fine has been only $800.

In essence, that makes Texas a “pay-to-pollute” state for sand miners.

If Everest is successful, the “expected” part of their claim may form a precedent that transforms the mining industry in this state. Especially if the Attorney General successfully prosecutes the Triple PG mine in Porter. The Attorney General alleges serial pollution and seeks fines that could exceed a million dollars. (Note: The underlying suits in this Megasand case also name Triple PG as a co-defendant.)

Financial risk may produce changes in business practices that Austin has not been willing to legislate.

Posted by Bob Rehak on 4/11/2020 with thanks to Steven Selbe

956 Days after Hurricane Harvey

The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.

EPA Suspends Enforcement of Pollution Rules During Virus Epidemic

The EPA has suspended normal enforcement of air and water pollution rules during the corona virus epidemic. Critics fear it could cause more deaths. They also fear that rules forced through during the emergency could hamper future pollution control efforts. Specifically, a new, broadened rule would limit use of research based on confidential health information in regulatory decisions.

Full Text of EPA Memo

This 7-page memo from the EPA outlines the new policy. It says, the EPA will “generally not seek stipulated or other penalties for noncompliance…” The thrust of the memo: EPA is counting on industry to self-report violations. If violations relate to worker shortages due to the virus, EPA will not seek penalties. EPA will also give offenders time to remedy the situation.

Reaction from Interceptor

Sharon Lerner writes in The Interceptor that “EPA IS JAMMING THROUGH ROLLBACKS THAT COULD INCREASE CORONAVIRUS DEATHS.” The article cites the case of a Pasadena refinery exceeding benzene emission limits. It also cites problems in St. Johns, Louisiana. St. John reportedly has the highest cancer risk from air pollutants in the country. Area residents are routinely exposed to dozens of air pollutants, including the carcinogen chloroprene.

Residents worry that their weakened immune response from the chemicals will make them even more susceptible to the virus.

Review by New York Times

Lisa Friedman writes in The New York Times that “E.P.A., Citing Coronavirus, Drastically Relaxes Rules for Polluters.” The EPA, says the article, will focus during the outbreak “on situations that may create an acute risk or imminent threat to public health or the environment” and said it would exercise “discretion” in enforcing other environmental rules. In other words, they will focus primarily on the worst cases.

Ms. Friedman interviewed former EPA administrators. Gina McCarthy, who led the E.P.A. under the Obama administration and now serves as president of the Natural Resources Defense Council, called it “an open license to pollute.” Cynthia Giles, who headed the E.P.A. enforcement division during the Obama administration, said: “This is essentially a nationwide waiver of environmental rules. It is so far beyond any reasonable response. I am just stunned.”

A current spokesperson for the EPA, Andrea Woods, disagreed. “For situations outside of routine monitoring and reporting,” she said, “the agency has reserved its authorities and will take the pandemic into account on a case-by-case basis.”

Protest by 21 Environmental and Watchdog Groups

Meanwhile, Rebecca Beitsch reports in The Hill that “Coalition petitions EPA for disclosure as agency OKs suspension of environmental monitoring.” She says, “Environmental groups have characterized the memo as a license to pollute, as companies will not have to submit regular reports to the EPA showing they are not violating environmental laws.” She cites a petition spearheaded by the Natural Resources Defense Council which was signed by 21 environmental and watchdog groups. “We fully appreciate the disruption and harm caused by the COVID‐19 pandemic. But EPA’s unprecedented non‐enforcement policy creates a clear opportunity for abuse,” states the petition.

LA Times Reports on Reaction by California Officials

The Los Angeles Times reports in an article by Susanne Rust, Louis Sahagun and Rosanna Xia. “Citing coronavirus, EPA suspends enforcement of environmental laws.” The LA Times article focuses on the response of California officials. “The severity of the COVID-19 crisis should not be used as an excuse by the EPA to relax enforcement of federal environmental laws designed to protect public health and safety,” said Serge Dedina, mayor of Imperial Beach. His city, on the Mexican border, is under constant siege from pollution. “This crisis has only underscored why protecting public health and safety and our environment is more critical than ever.”

Is EPA Using Crisis as Cover to Make Concessions to Polluters?

Vox in an article by By Zeeshan Aleem claimed that “The EPA appears to be using coronavirus to make huge concessions to polluters.” It says the rule will remain in place indefinitely. And it gives factories, power plants, and other major polluters tremendous discretion. Now they can decide whether or not the coronavirus will prevent them from meeting legal requirements on air and water pollution and hazardous waste management. “Many experts and environmental advocates say that while case-by-case relaxation of rules for companies that are short-staffed due to the pandemic makes sense, the expansiveness of the EPA’s directive appears both unprecedented and designed to give a green light to polluters to act recklessly at a time when air quality is acutely important for public health.”

Other Reaction from Around the Country

For additional perspectives see:

Business Insider: The Environmental Protection Agency says it won’t enforce its own rules during the coronavirus pandemic.

USA Today: EPA suspends some public health monitoring and enforcement because of coronavirus crisis.

Texas Tribune: Citing coronavirus pandemic, Trump administration stops enforcing environmental laws.

CBS News: “An open license to pollute”: Trump administration indefinitely suspends some environmental protection laws during coronavirus pandemic.

An Associated Press Article in Marketwatch: Citing coronavirus, EPA has stopped enforcing environmental laws

The list goes on. A google search returned 11,800,000 results.

Will TCEQ Follow EPA Lead?

To say this is controversial would be an understatement.

At the very time when people’s lives and health are threatened by the virus, the EPA is dialing back enforcement of pollution rules that protect their lives and health.

At best, you could characterize the reaction to the new rule as “practical” given new constrictions we all operate under.

But, like the national press, I worry that this is part of a broader effort to dial back enforcement against polluters. We see examples of pollution threats right here in the Lake Houston area almost every month. And we saw them before the pandemic.

The day the West Fork ran white. TCEQ alleges Liberty Materials mine upstream dumped 56 million gallons of process water into the San Jacinto.
Aerial photo taken March 6 shows neighboring properties in foreground flooded by process water from the Triple PG mine in Porter, Tx. This process water migrated through the forest into the floodplain of White Oak Creek which ultimately leads to Lake Houston and the drinking water of 2 million people.

It will be interesting to see how the TCEQ reacts to the new EPA stance. Will they fall in line? I expect their report on the latest concerns about the Triple PG mine on Friday. The mine allegedly violated the terms of a temporary injunction in its case with the Texas Attorney General. Stay tuned.

Posted by Bob Rehak on 4/1/2020

946 Days after Hurricane Harvey