"People dump toxins; we sue them," says Daniel W. "Tripp" Ray.
Representing five local governments, Ray has filed more than 25 suits in the past two years seeking civil penalties against defendants that his clients claim are responsible for a wide range of violations of the Texas Water Code and the Texas Health & Safety Code.
Ray’s clients — Ector, Grayson, Hunt and Collin counties and the city of Commerce — believe they have standing under Texas Water Code §7.351(a) to sue those who are committing, have committed or are threatening to commit a wide range of specific violations of the Water Code and Health & Safety Code. For each day of alleged violations, the law allows Ray’s local government clients to seek not less than $50 and no more than $25,000 in civil penalties.
But Cox Smith Matthews partner Thomas Alleman of Dallas, opposing counsel in one such suit, is troubled by the trend of local governments hiring lawyers like Ray to initiate proceedings to obtain civil penalties for alleged violations of the Texas Water Code and Health & Safety Code.
"We have serious concerns about the constitutionality of the statues they rely upon, because they allow local governments to circumvent an administrative structure set up by the state and allow for an enforcement that is not tied to anything or any consultation initially with the state."
Ray, a partner in Greenville’s Scott, Money & Ray, believes no attorney in Texas has filed more such water-code-related suits that seek civil penalties. He views himself as on an urgent mission due to the decade-long drought forecast for Texas.
Ray’s clients have filed lawsuits that allege violations ranging from dumping motor oil in waterways, leaking brine-water on the roads, pouring septic waste in the desert, and burying asbestos and lead in the water table.
"Basically, you have a bunch of contractors and subcontractors who, when nobody is looking, drive down a road and dump stuff," Ray says.
"The goal here is to get each individual thing cleaned up and also to send the message that the law is going to be enforced," Ray says about his work.
Ray believes those he pursues on behalf of the local governments are wreaking havoc on Texas’ water supply, which is dwindling and expected to suffer more with predicted droughts.
Of Ray’s 25 cases, six have ended with a settlement or are awaiting final settlement approval, he says. Those agreements will generate more than $1.4 million in total fines, fees and local economic development money, which the defendants agree to pay. Three other pending cases have proposed settlements, which could lead to $42,400 more, Ray says.
One suit in which a settlement is pending is City of Commerce, et al. v. Roland Von Kurnatowski III, et al.,in the 196th District Court in Hunt County. Alleman and Renee Strickland, a senior attorney at Cox Smith in Dallas, represent the defendants. Strickland says the city sued her clients after they bought a property that they planned to restore from being "an eyesore" and that the city sued her clients before contacting them.
In Von Kurnatowski,the city of Commerce alleges in an amended petition filed Feb. 13, 2012, that owners of an apartment building that burned in a fire demolished and disposed of the remaining debris, which they knew included asbestos, in violation of multiple public health and environmental protection laws.
In an answer and counterclaim filed on Dec. 2, 2011, the defendants deny the allegations and state as an affirmative defense that previous owners of the building and the city, having let the building stand, were responsible for damages. In the counterclaim section of the same filing, the defendants allege the city has denied their right to due process by seeking the civil penalties without any procedural guidelines for caps.
Alleman, Strickland and Ray say all parties have agreed upon a tentative settlement, requiring only final signatures.
Strickland says her clients have agreed to pay in fines a total $192,000, which will be split by the city and the state. The Water Code requires that the state become a party to this type of litigation after a city or county files a suit.
But Strickland notes the individuals named by the city will have all allegations dismissed, and the final judgment will state that the defendants found no contamination and that recent tests by the city have shown none either.
Strickland says that there has been "an avalanche" of these types of cases. But, about Von Kurnatowski, she says, "[O]ur clients have firmly disputed the allegations at every point in the lawsuit."