City may face federal lawsuit over wastewater treatment plant

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By MIKE EDDLEMAN

It has been a nearly three-year standoff between property owners downriver from the Liberty Hill wastewater treatment plant and the City, but the stakes may soon be raised with a potential federal lawsuit on the way.

The City Council spent nearly an hour in executive session Monday discussing the notice of intent to file suit, but did not speak on it in open session. At the conclusion of the meeting, Mayor Rick Hall said the City would not be making any comment.

If filed, the lawsuit would be brought in federal court by Texas RioGrande Legal Aid (TRLA), representing resident Stephanie Morris who owns property along the South San Gabriel River downstream from the plant.

The item for executive session on the Monday agenda was the notice of intent — a requirement for those planning to sue in federal court.

“When you file a Clean Water Act lawsuit you have to give the entity 60 days notice and so we’ve just given them notice of our intent to sue them,” said Attorney Amy Johnson. “Conceivably it could be settled in 60 days but it’s a federal law and you’re required under federal law to give them notice. Right now the clock is ticking.”

She added that there is the possibility a settlement could be reached prior to the 60 days passing, but such a settlement, according to what is being sought, will demand considerable change in how the plant is operated.

“The biggest issue in the suit is not just their past violations, but the future problems they are going to continue to cause,” Johnson said. “It’s not like they did a bad thing and it’s over. What Mrs. Morris wants is for it to stop.”

The primary issue is regular algae blooms that choke the South San Gabriel River downstream from the plant, but do not typically appear upstream, leading residents to argue that the plant’s effluent is causing the algae.

The City has argued in the past that the effluent is not causing the algae – often pointing to development runoff or lawn chemicals making their way into the river as the culprit. The City has also stood behind its stance that it is operating according to its permit from the Texas Commission on Environmental Quality.

Not only is there concern among residents about the current situation, but there is worry that the current plant expansion plan will create even bigger issues if the permit renewal is granted and the City continues to operate as it is now while increasing the amount of effluent put into the river.

“The City approach seems to be to go full-steam ahead on growing and expanding and putting more effluent out into that river,” Johnson said. “And not at the levels that are protective of it.”

The City has, in the past, touted the strictness of its permit and the new technology being used in the plant, but Johnson argues both the permit renewal and its strictness are issues.

“There are two different actions going on right now,” she said. “One is the City is trying to renew its permit at TCEQ, and in that case what we are saying to the state is the permit is not strict enough. In front of the federal court what we are saying is the City is violating the permit as it is. The City has violated the permit that is not strict enough.”

According to the lawyers from TRLA, the Clean Water Act allowed the state to take over regulation of state water quality if the state took certain measures, including classifying all the streams, determining the baseline water quality of Texas streams.

“For this stream it is high quality and it is called fishable/swimmable,” Johnson said. “You’re supposed to be able to swim in it but nobody would want to swim in it now, at least downstream of where the discharge is because it’s full of algae. You are supposed to protect it aesthetically.”

When discussing aesthetics, Johnson said some might think it is an ambiguous term, but she said the evidence is clear.

“You can look at this river upstream of the discharge and downstream from it and you can see what the City is doing to this river is ruining it aesthetically,” Johnson said.

If the lawsuit is filed, the first order of business will be to seek an injunction.

“Part of what we will ask for in a lawsuit is an injunction. And in an injunction the court will order the City to comply and if the City violates that order, if they continue to discharge in such a way that harms the aesthetics of the river, then that will then be a violation of a federal court order, not just TCEQ. We hope that the City, and trust the City, will take a federal court order very seriously. Whether we’ll win that or not I can’t tell you, but I can tell you that stream is in pretty bad shape.”

The lawsuit is not only about past violations or issues with the algae, but also about taking actions to prevent the same in the future.

“We have to tell them what they’ve done wrong and there’s a time period that we can tell them that,” Johnson said. “So far as future violations go, when we ask the court to enjoin and to stop them from doing certain things we will show to the court – unless something changes – that the aesthetic problems and the fishable/swimmable problems and the violation of the narrative standards continues.”

Attorneys also argue that Liberty Hill has had many past issues with its reporting to TCEQ.

“As far as I know, most of that is in the past, but for quite a while they had these repetitive ongoing issues with their reporting,” said Attorney Loraine Hoane.

One example was the alleged miscalculation of an average that measures the chemical content of the effluent produced by the plant.

“You have to take a certain number of samples, according to the effluent limit permit,” Hoane said. “You have to take a certain number of samples per week and a certain number per month and so when you calculate what’s called the daily average – which really the monthly average of all the samples in the month – you should only be averaging together the numbers you have. Basically what (the City) did for several months is they put zeros in all the days they didn’t take a sample and then averaged in all of those zeros, which as you can imagine really skews the average quite low.”

By averaging in the zero days, the levels were reported dramatically lower than TRLA attorneys say was the actual number to be reported.

“The average is much much lower than any of the measurements that were actually taken and that’s what happens if you average in 20 to 25 zeros along with the actual measurements,” Hoane said.

She said additionally there have been other calculations made incorrectly and over time the City has made “smaller calculating errors” as well.

When asked if they believed the miscalculations to be by mistake or intentional, the attorneys could not say.

“I don’t think we have a way to know, but I would say that it should have been obvious it was incorrect,” Hoane said.

The repeated miscalculations raised more concerns.

“If it was just one time you’d think ‘oh, they messed up’, but if you do it a lot it makes you wonder why wasn’t somebody looking at it carefully?” Johnson said. “Did they not take it seriously enough? Those kind of questions.”

Johnson and Hoane said their only contact has been through the City’s legal counsel, but there wasn’t a clear sign the City was eager to date to work out a solution.

“I mean if by responsive you mean does the City respond to things, the answer is sometimes,” Hoane said. “Their position seems to be that they are following their permit – which is not necessarily true – and they don’t have to do more than the state tells them they have to do.”

“So far, what we have seen is that their position is digging in,” Johnson added. “I’m hoping they are going to be more creative and open to listening to things, but I’m not sure that they are.”

The solution to the problem according to TRLA attorneys is simple but dramatic.

“You don’t have to discharge into the river,” Johnson said. “There are all kinds of parts of the hill country where the standard is what you call reuse. Yes, you need to treat your wastewater, but you don’t have to put it into the stream, so the more responsible answer for this kind of low-flow hill country stream is not to put your effluent into it, and that’s the right answer. That’s what they need to be doing.”

The strictness of the permit is not an excuse to lean on in the minds of those pursuing the lawsuit.

“They’re going to tell you that they have the strictest permit and have the best engineering out there, and I will tell you the strictest doesn’t mean it’s good enough,” Johnson said. “We will tell you it is clearly not going to be protective of this stream.”

In the letter of intent addressed to Mayor Hall as representative of the City, TRLA outlines the reasons for the intent to sue on behalf of Morris, detailing concerns over the City’s permit, past alleged violations, reporting violations and a brief history of TCEQ investigations and inquiries.

“In the last five years, TCEQ has investigated Liberty Hill and the South Fork San Gabriel River several times, including multiple times in the last few years. This includes compliance investigations in May 2018, December 2018, January/February 2019, March 2019, August 2019,” the letter states. “These investigations have led to alleged violations based on a large variety of issues, including discharge of wastewater solids, algae growth, discharge of chlorine, high levels of foam, impairment of the aesthetic condition of the river, and more. However, TCEQ has acted slowly in its enforcement, and, even when it has gone through with an agreed order, has failed to deal with many of the relevant violations.”

TRLA is a legal aid provider that was founded in 1970 to represent Texas farmworkers, and today, one of its many arms includes an environmental justice team.

“This is the sort of thing where we often represent community groups so we represent multiple people on an issue that helps a lot of people, but this is the kind of case where you can represent one person and have a large impact,” Hoane said.

And while this potential lawsuit is being considered on behalf of Morris, Johnson cautions the community against believing this is an attempt to get a payday.

“People will see the amount of money the City could be fined and they will think Stephanie (Morris) is going after millions of dollars,” Johnson said. “It’s very important for the community to understand that money does not go to the person who brings the suit. She doesn’t get anything. The money would go to the federal government. She has no economic motivation in this.”

As far as penalties the City could face, there is a potential fine of up to $55,800 for each violation.

“Since there are more than 3,000 violations the potential is a lot,” Johnson said.

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