ACCEPTED
01-15-00354-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
11/13/2015 11:19:52 AM
CHRISTOPHER PRINE
CLERK
No. 01-15-00354-CV
In the First Court of Appeals FILED IN
1st COURT OF APPEALS
Houston, Texas HOUSTON, TEXAS
11/13/2015 11:19:52 AM
CHRISTOPHER A. PRINE
Clerk
HARRIS COUNTY, TEXAS
PLAINTIFF/APPELLANT/CROSS-APPELLEE
V.
INTERNATIONAL PAPER CO.
DEFENDANT/APPELLEE/ CROSS-APPELLANT
On Appeal from the 295th District Court of Harris County, Texas
No. 2011-76724
APPELLANT HARRIS COUNTY’S
BRIEF AND APPENDIX
Rock W.A. Owens Debra Tsuchiyama Baker
Texas Bar No. 15382100 Texas Bar No. 15089600
Vince Ryan Earnest W. Wotring
Harris County Attorney Texas Bar No. 22012400
Texas Bar No. 99999939 John Muir
Terence L. O’Rourke Texas Bar No. 14630477
Special Asst. Harris County Attorney David George
Texas Bar No. 15311000 Texas Bar No. 00793212
OFFICE OF HARRIS COUNTY ATTORNEY BAKER•WOTRING LLP
VINCE RYAN 700 JPMorgan Chase Tower
1019 Congress, Room 1547 600 Travis Street
Houston, Texas 77002 Houston, Texas 77002
Telephone: (713) 755-5908 Telephone: (713) 980-1700
Fax: (713) 437-4211 Fax: (713) 980-1701
rock.owens@cao.hctx.net dbaker@bakerwotring.com
Counsel for Appellant Harris County, Texas
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Parties Counsel
Plaintiff/Appellant/ Rock W.A. Owens
Cross-Appellee Practice Group Manager
Harris County, Texas Environment & Infrastructure Group
Harris County Attorney’s Office
Vince Ryan
Harris County Attorney
Terence L. O’Rourke
Special Asst. Harris County Attorney
OFFICE OF HARRIS COUNTY ATTORNEY
VINCE RYAN
1019 Congress, Room 1547
Houston, Texas 77002
Debra Tsuchiyama Baker
Earnest W. Wotring
John Muir
David George
BAKER•WOTRING LLP
700 JPMorgan Chase Tower
600 Travis Street
Houston, Texas 77002
Defendant/Appellee/ Winstol D. Carter, Jr.
Cross-Appellant Allyson N. Ho
International Paper Co. Craig A. Stanfield
MORGAN, LEWIS & BOCKIUS LLP
1000 Louisiana Street, Suite 4000
Houston, Texas 77002
ii
Necessary and Mary E. Smith
Indispensable Party Anthony Benedict
The State of Texas, Assistant Attorney General
acting by and through OFFICE OF THE ATTORNEY
Texas Commission on GENERAL OF TEXAS
Environmental Quality ENVIRONMENTAL PROTECTION DIVISION
P.O. Box 12548, Capitol Station
Austin, Texas 78711
iii
TABLE OF CONTENTS
Identity of Parties and Counsel .................................................................................... ii
Table of Contents .......................................................................................................... iv
Index of Authorities ..................................................................................................... vii
Record Citation Abbreviations .................................................................................... xii
Statement of the Case ................................................................................................ xiii
Statement Regarding Oral Argument ....................................................................... xiv
Issues Presented ......................................................................................................... xvi
Statement of Facts ......................................................................................................... 1
In the 1960s, International Paper dumped its dioxin-contaminated
paper-mill sludge into Pits next to the San Jacinto River. .................................. 1
The Pits failed, releasing dioxin into the San Jacinto River. .............................. 5
The EPA designated the Pits as a Superfund site in 2008 because of dioxin
contamination from the sludge. .......................................................................... 10
Harris County sued International Paper for civil penalties because the
company caused, suffered, allowed, or permitted violations of Texas
environmental laws. ............................................................................................ 11
The trial court refused to allow evidence regarding the dangers of dioxin
at trial. ................................................................................................................. 13
The trial court refused to submit to the jury questions on whether
International Paper caused, suffered, allowed, or permitted a public
endangerment or a nuisance. .............................................................................. 21
The trial court instructed the jury that International Paper no longer
owned its dioxin-contaminated paper-mill sludge after it was dumped
in the Pits. ............................................................................................................ 22
The other defendants settled at the end of the trial before closing
arguments. ........................................................................................................... 24
The jury found for International Paper. ............................................................. 25
Standard of Review ...................................................................................................... 26
Summary of Argument ................................................................................................ 28
iv
Argument ..................................................................................................................... 30
I. The trial court erred when it refused to submit to the jury Harris
County’s claims for endangerment of the public health and for
nuisance. ...................................................................................................... 31
A. The trial court erred when it refused to submit Harris County’s
claim for endangerment of the public health. .................................... 31
B. The trial court erred when it refused to submit Harris County’s
claim for nuisance. ............................................................................... 35
1. International Paper’s stipulation is evidence that the dioxin
in the Pits created a nuisance. .................................................... 36
2. There is sufficient evidence in the record regarding nuisance
in addition to International Paper’s stipulation......................... 36
C. The trial court erred when it excluded evidence on endangerment
and nuisance. ....................................................................................... 39
1. The trial court erred when it excluded the government
reports on dioxin’s health risks. .................................................. 40
2. The trial court erred in using Havner to determine the
admissibility of evidence regarding dioxin’s health risks. ......... 41
3. Harris County provided evidence that International Paper’s
dumping of the dioxin-laced sludge in the Pits endangered
the public health and created a nuisance. .................................. 46
4. The trial court’s improper exclusion of the evidence
regarding the dangers of dioxin was reversible error. ............... 48
D. The endangerment and nuisance issues are not “functionally
identical” to the submitted discharge question. ................................. 49
II. The trial court erred in the jury instructions that it gave regarding
International Paper causing, suffering, allowing, or permitting a
discharge or imminent threat of discharge of waste. ................................. 56
A. The trial court erred when it instructed the jury that
International Paper no longer owned the sludge as of 1966.............. 56
1. International Paper did not conclusively establish that the
ownership of its sludge passed to MIMC when MIMC took
the sludge to the Pits. .................................................................. 58
2. International Paper did not conclusively establish that the
sludge became a fixture to the real property after it was
dumped in the Pits. ..................................................................... 63
a. The sludge cannot be a fixture because it was not an
improvement. ....................................................................... 65
v
b. There was no intent to incorporate the sludge into
the soil, so it is not a fixture................................................ 67
c. International Paper failed to conclusively establish
that removing the sludge would materially damage
the Site. ................................................................................ 70
3. The trial court’s erroneous instruction was reversible error
because it related to a contested, critical issue. ......................... 71
B. The trial court erred when it instructed the jury that generating
waste and contracting for disposal is not sufficient to establish
liability. ................................................................................................ 74
Prayer ........................................................................................................................... 74
Certificate of Service.................................................................................................... 76
Certificate of Compliance ............................................................................................ 76
Appendix
Verdict (63 CR 35172-35199) ................................................................................ A
Final Judgment (64 CR 35217-35222) .................................................................. B
Order Denying Harris County’s Motion for New Trial
(64 CR 35637-35638) ............................................................................................. C
Harris County’s Notice of Appeal (63 CR 35681-35684) ..................................... D
Harris County’s Requested Questions and Instructions Regarding
Endangerment of the Public Health and Creation of a Nuisance
(63 CR 35097-35098) ............................................................................................. E
State’s Requested Questions and Instructions Regarding
Endangerment of the Public Health and Creation of a Nuisance
(63 CR 35127)......................................................................................................... F
Harris County’s Requested Questions and Instructions Regarding
whether Sludge was a Fixture (63 CR 35113-35116) .......................................... G
Stipulation Regarding Dioxin (62 RR 9-11) ......................................................... H
vi
INDEX OF AUTHORITIES
Cases
Avanti Sales Int’l, Inc. v. Pycosa Chem., Inc.,
No. 01-04-00983-CV, 2005 WL 2670740 (Tex. App.—Houston
[1st Dist.] Oct. 20, 2005, no pet.) ........................................................... 50
BIC Pen Corp. v. Carter,
346 S.W.3d 533 (Tex. 2011) .................................................................... 43
Borg-Warner Corp. v. Flores,
232 S.W.3d 765 (Tex. 2007) .................................................................... 43
Bostic v. Georgia-Pac. Corp.,
439 S.W.3d 332 (Tex. 2014) .............................................................. 42, 44
Brown & Root, Inc. v. Shelton,
No. 12-01-00259-CV, 2003 WL 21771917 (Tex. App.—Tyler
July 31, 2003, no pet.) ............................................................................ 65
City of Brownsville v. Alvarado,
897 S.W.2d 750 (Tex. 1995) .............................................................. 27, 48
City of Keller v. Wilson,
168 S.W.3d 802 (Tex. 2005) .................................................................... 59
Columbia Rio Grande Healthcare, LP v. Hawley,
284 S.W.3d 851 (Tex. 2009) .................................................................... 71
Cox v. Rhodes,
233 S.W.2d 924 (Tex. Civ. App.—El Paso 1950, writ ref’d n.r.e.) ....... 68
Dow Chem. Co. v. Abutahoun,
395 S.W.3d 335 (Tex. App.—Dallas 2013, no pet.) ............................... 65
Dubin v. Carrier Corp.,
731 S.W.2d 651 (Tex. App.—Houston [1st Dist.] 1987,
writ dism’d) ........................................................................................ 65-66
Elbaor v. Smith,
845 S.W.2d 240 Tex. 1992) ................................................... 26, 31, 35, 48
vii
Gulley v. Davis,
321 S.W.3d 213 (Tex. App.—Houston [1st Dist.] 2010,
pet. denied) ........................................................................................ 27, 48
Hamid v. Lexus,
369 S.W.3d 291 (Tex. App.—Houston [1st Dist.] 2011, no pet.) .......... 26
Hansen v. Academy Corp.,
961 S.W.2d 329 (Tex. App.—Houston [1st Dist.] 1997, writ denied) .. 34
Hiles v. Arnie & Co.,
402 S.W.3d 820 (Tex. App.—Houston [14th Dist.] 2013,
pet. denied) .............................................................................................. 34
Houston Bldg Serv., Inc. v. Am. Gen. Fire and Cas. Co.,
799 S.W.2d 308 (Tex. App.—Houston [1st Dist.] 1990, writ denied) .. 70
Hyundai Motor Co. v. Rodriguez,
995 S.W.2d 661 (Tex. 1999) .................................................................... 49
In re Dep’t of Family & Protective Servs.,
273 S.W.3d 637 (Tex. 2009) .................................................................... 27
In re J.P.B.,
180 S.W.3d 570 (Tex. 2005) .................................................................... 27
In re Premcor Ref. Group, Inc.,
233 S.W.3d 904 (Tex. App—Beaumont 2007)
(orig. proceeding) ...................................................................35-37, 39, 54
Indiana Waste Sys. of Indiana, Inc. v.
Indiana Dept. of State Revenue,
633 N.E.2d 359 (Ind. T.C. 1994) ............................................................ 59
Jamail v. Stoneledge Condominium Owners Ass’n,
970 S.W.2d 673 (Tex. App.—Austin 1998, no pet.) .............35-37, 39, 54
Lee v. Lee,
411 S.W.3d 95 (Tex. App.—Houston [1st Dist.] 2013, no pet.) ............ 63
Melendez v. State,
902 S.W. 2d, 132 (Tex. App.—Houston [1st Dist.] 1995, no writ) ....... 70
viii
Merck & Co. v. Garza,
347 S.W.3d 256 (Tex. 2011) .................................................................... 43
Merrell Dow Pharm., Inc. v. Havner,
953 S.W.2d 706 (Tex. 1997) .............. v, xiv, xvii, 20-21, 29, 40-45, 47, 74
Meyer Waste Sys., Inc. v. Indiana Dept. of State Revenue,
741 N.E.2d 1 (Ind. T.C. 2000) ................................................................ 59
Moore v. Carey Bros. Oil Co.,
269 S.W. 75 (Tex. Comm’n App. 1925) .................................................. 68
Parker v. Employers Mut. Liab. Ins. Co.,
440 S.W.2d 43 (Tex. 1969) ...................................................................... 42
R.R. Comm’n of Tex. v. Waste Mgmt. of Tex.,
880 S.W.2d 835 (Tex. App.—Austin 1994, no writ) ......................... 59-60
R.R. St. & Co. v. Pilgrim Enter.,
166 S.W.3d 232 (Tex. 2005) .................................................................... 45
Reames v. Hawthorne-Seving, Inc.,
949 S.W.2d 758 (Tex. App.—Dallas 1997, pet. denied) ................... 65-66
Rosenboom Mach. & Tool, Inc. v. Machala,
995 S.W.2d 817 (Tex. App.—Houston [1st Dist.] 1999, pet. denied) ... 34
Russell v. Am. Real Estate Corp.,
89 S.W.3d 204 (Tex. App.—Corpus Christi 2002, no pet.) ................... 60
Sharpe v. Turley,
191 S.W.3d 362 (Tex. App.—Dallas 2006, pet. denied) ................... 59-60
Shupe v. Lingafelter,
192 S.W.3d 577 (Tex. 2006) .................................................................... 26
Sonnier v. Chisholm-Ryder Co.,
909 S.W.2d 475 (Tex. 1995) .........................................................65, 67-68
State ex rel. Wear v. Springfield Gas & Elec. Co.,
204 S.W. 942 (Mo. 1918) ......................................................................... 38
Texas Gulf Sulphur Co. v. State,
16 S.W.2d 408 (Tex. Civ. App.—Galveston 1929, no writ) .................. 38
ix
TH Inv., Inc. v. Kirby Inland Marine, LP,
218 S.W.3d 173 (Tex. App.—Houston [14th Dist.] 2007,
pet. denied) .............................................................................................. 38
Thota v. Young,
366 S.W.3d 678 (Tex. 2012) .................................................. 27, 58, 71, 73
Trust Co. Bank v. U.S. Gypsum Co.,
950 F.2d 1144 (5th Cir. 1992) ................................................................ 65
Union Pac. R.R. Co. v. Williams,
85 S.W.3d 162 (Tex. 2002) ...................................................................... 27
Walker v. Gutierrez,
111 S.W.3d 56 (Tex. 2003) ...................................................................... 27
Westchester Fire Inc. Co. v. Roan,
215 S.W.985 (Tex. Civ. App.—Fort Worth 1919, writ ref’d) ................ 69
Statutes
Acts 1961, 57th Leg. 1st C.S., ch. 42, § 9 ................................................. 11
Former TEX. WATER CODE § 7.107
(amended by Acts 2015, 84th Leg., ch. 542, § 1) ................................... 12
TEX. WATER CODE § 7.101 .................................................................... 11, 44
TEX. WATER CODE § 7.102 .................................................................... 11, 44
TEX. WATER CODE § 7.107 .......................................................................... 12
TEX. WATER CODE § 7.351(a) ..................................................................... 11
TEX. WATER CODE § 7.353 .......................................................................... 12
TEX. WATER CODE § 26.121(a) ............................................................. 12, 25
x
Rules
TEX. R. APP. P. 9.7 ...................................................................................... 74
TEX. R. CIV. P. 278 ................................................................................ 26, 50
TEX. R. EVID. 401 ........................................................................................ 40
TEX. R. EVID. 803(8) ............................................................................. 40, 41
Regulations
30 TEX. ADMIN. CODE § 335.1(140) ............................................................ 32
30 TEX. ADMIN. CODE § 335.1(80) ........................................................ 32, 33
30 TEX. ADMIN. CODE § 335.4 ...................................... 12, 25, 31-32, 35, 52
Other Authorities
BLACK’S LAW DICTIONARY 2 (6th ed. 1990) ............................................... 60
RESTATEMENT (SECOND) OF TORTS § 821B(1) ................................. 35-39, 54
xi
RECORD CITATION ABBREVIATIONS
“RR” refers to the Reporter’s Record.
“CR” refers to the Clerk’s Record.
“SCR” refers to the Supplemental Clerk’s Record. One volume of the
Supplemental Clerk’s Record has been filed. The District Clerk did not
include certain documents that Harris County requested to be included
in the Clerk’s Record. Harris County, therefore, has requested an
additional Supplemental Clerk’s Record, but it has not been filed as of
the time of the filing of this brief. Harris County will cite to those
documents as “2 SCR ___.”
“PX” refers to the Plaintiff’s Exhibits, which are located in volume 82 of
the Reporter’s Record.
“DX” refers to the Defendants’ Exhibits, which are located in volumes
83 and 84 of the Reporter’s Record.
“OPX” refers to Harris County’s exhibits for its offer of proof on
November 10, 2014, which are located in volume 86 of the Reporter’s
Record.
“CX” refers to the exhibits that were admitted for the trial court’s use
only, which are located in volume 87 of the Reporter’s Record.
xii
STATEMENT OF THE CASE
Nature of This is an appeal after a jury trial in an environmental
the Case civil-penalty case brought by Harris County.
Trial Court Hon. Caroline E. Baker
295th District Court of Harris County, Texas
Course of Harris County sued International Paper Co. and other
Proceedings companies for civil penalties for their decades-long
pollution of the San Jacinto River with dioxin.1 The
other defendants settled before the case was submitted to
the jury.2
Trial Court The trial court refused to submit Harris County’s
Disposition requested jury question on whether International Paper
caused, suffered, allowed, or permitted a threat to public
health or a nuisance, even though it had not granted a
directed verdict on the issue.3 The trial court instructed
the jury that International Paper ceased to own the
waste at issue in the 1960s, even though that was a
disputed issue.4 Based on the trial court’s charge, the
jury found for International Paper.5 The trial court
entered a take-nothing judgment against Harris County
based on the jury’s verdict.6 It denied Harris County’s
motion for new trial.7
1 1 CR 73.
2 77 RR 7.
3 63 CR 35097-35098 (App. E); 63 CR 35127 (App. F).
4 63 CR 35177, 35183 (App. A).
5 Id.
6 64 CR 35217 (App. B).
7 64 CR 35637 (App. C).
xiii
STATEMENT REGARDING ORAL ARGUMENT
Harris County believes that this case presents the most
significant issues of Texas environmental law within the last twenty-
five years, if not since the Texas Water Code was amended in 1967 to
permit local governments to bring civil-penalty actions.
The case presents an issue of first impression under Texas law on
the appropriate scope of Merrell Dow Pharmaceuticals, Inc. v. Havner 8
applied in this government civil-penalty case: Whether the trial court
must exclude a governmental entity in an environmental civil-penalty
case from introducing any evidence that the defendants endangered
public health and the environment unless the evidence meets Havner’s
doubling-of-the-risk requirement for establishing causation in a toxic-
tort suit. Resolving that issue will include addressing:
● Whether Harris County should have been permitted
to introduce evidence that dioxin in the San Jacinto
River Waste Pits posed a danger to human health
that was less than a doubling of the risk, and
● Whether reports and findings of governmental
agencies (including The Texas Department of
Health, United States Centers for Disease Control,
the International Agency for Research on Cancer,
and the United States EPA) are “junk science”
8 Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997).
xiv
because they do not demonstrate a doubling of the
risk of cancer or other diseases.
In addition, this case involves unsettled issues regarding the
ownership of contaminated waste. The trial court determined that the
generator of dioxin-laced sludge can transfer ownership of that sludge
to a third-party as a matter of law by having the sludge deposited on
the third-party’s land and walking away. This Court must determine
whether the trial court correctly held that generators of dangerous
waste can absolve themselves of legal responsibility by having the
waste dumped on a third party’s land and wishing it away.
Harris County requests oral argument to present these issues to
this Court and to respond to any questions that this Court might have
about these compelling issues. Given that International Paper has
taken the extraordinary step of filing its own notice of appeal from the
take nothing judgment in its favor, Harris County is confident that both
sides can agree on this point, if perhaps no other.
xv
ISSUES PRESENTED
1. The trial court erred when it refused to submit Harris
County’s issues to the jury on whether International
Paper endangered the public health and welfare or caused
a nuisance. Harris County’s pleadings contained these
causes of action, and the record contained evidence
supporting them.
2. The trial court erred when it excluded evidence of the
threat that dioxin poses to public health and welfare. The
trial court incorrectly excluded this evidence based upon
its determination that Havner required it to exclude all
evidence that dioxin posed a public-health risk unless the
evidence demonstrated a doubling of the risk. This
improperly added a causation standard used in toxic-tort
cases into this government civil-penalty action.
3. The trial court erred when it determined that
International Paper did not own the dioxin-laced sludge
dumped in the Pits. Before and during trial, the trial
court determined that there was a fact issue on whether
International Paper owned the sludge. When it charged
the jury, the trial court changed its mind on this issue,
and it instructed the jury that International Paper did not
own the waste. Because the trial court misinterpreted the
law on waste ownership and fixtures, it incorrectly found
that International Paper transferred ownership of its
sludge by having its sludge dumped on a third party’s
land.
4. The trial court erred when it instructed the jury that
generating waste and contracting for disposal is not
sufficient to establish liability. (Harris County adopts the
State’s brief on this issue)
xvi
STATEMENT OF FACTS
This case involves decades-long contamination of the San Jacinto
River in Harris County with dioxin from International Paper’s paper
mill in Pasadena.9
In the 1960s, International Paper dumped its dioxin-
contaminated paper-mill sludge into Pits next to the San Jacinto
River.
The process that International Paper used to manufacture paper
created waste, which it called “sludge.”10 The process also created a
type of dioxin called 2,3,7,8-tetrachlorodibenzo-p-dioxin—commonly
referred to as 2,3,7,8-TCDD—as a waste byproduct. 11 The dioxin was
part of International Paper’s sludge.12
Dioxins are a broad category of organic chlorinated hydrocarbons,
meaning they are organic compounds containing hydrogen, carbon, and
9 Champion Paper Co. was the entity that created the sludge at its paper mill in
Pasadena, Texas, and that contracted to have the sludge dumped in the Pits. DX
1436. In 2000, Champion merged into International Paper, thereby becoming part
of International Paper. 65 RR 37, 65. For simplicity, this brief will refer to both
Champion Paper and International Paper as International Paper.
10 PX 43 (International Paper referred to its waste byproduct as “sludge.”).
11PX 922; DX 1451 at 1-3. For convenience, this brief will refer to 2,3,7,8-TCDD as
“dioxin.”
1270 RR 197-199. Science and industry’s knowledge of dioxin has grown over the
years, but by the mid-1980s International Paper knew that its papermaking process
created dioxin as a waste byproduct and that the dioxin was in the sludge. 70 RR
197-199; PX 922; DX 1451 at 1-3. The EPA designated dioxin as a hazardous
substance in 1985. 70 RR 197.
1
chlorine atoms.13 Dioxins are hazardous substances, and even scientists
working with dioxins in the laboratory must use special precautions. 14
Laboratory scientists often use other substances with similar chemical
properties as substitutes for dioxin because of its dangers. 15
The EPA has determined that out of all the types of dioxin,
2,3,7,8-TCDD—the dioxin found in International Paper’s sludge—”is
considered the most toxic of the dioxins.”16 The danger of dioxin is
illustrated by the fact that the maximum contaminant level for dioxin
in drinking water is 30 picograms—30 trillionths of a gram—per liter.17
The process that International Paper used to make paper created
a great deal of waste, including sludge-filled waste water. 18 The
Pasadena mill “used 26 million gallons of water every day.”19 As early
as the mid-1950s, International Paper needed a way to dispose of its
13 63 RR 38.
14 Id.
15 63 RR 40.
16OPX 11 at 6. This statement comes from an EPA report that the trial court
excluded from evidence at trial. 74 RR 53-54, 57.
17 40 C.F.R. § 141.61(c)(33); 63 RR 149.
18 63 RR 51-52.
19 63 RR 51.
2
sludge.20 In 1965, International Paper decided to dump its sludge in
open pits on the bank of the San Jacinto River in Harris County, Texas
(the “Pits”).21 International Paper chose a location on the west bank of
the San Jacinto River, just north of where Interstate 10 crosses the
River (the “Site”).22
International Paper hired a company called McGinnes Industrial
Maintenance Corp. (“MIMC”) to barge the sludge from its Pasadena
paper mill to the Site, but International Paper—through its contract
with MIMC—retained control over the dumping.23 The contract
specified that the sludge would be dumped at “a tract of land acceptable
to” International Paper.24 The contract specified that the sludge would
20PX 43; see also PX 17 at 2 (by 1966, International Paper created a barge load of
sludge per day).
21 PX 17.
22 Id. at 5; 64 RR 188.
23 International Paper initially hired a company called the Ole Peterson
Construction Co., Inc. to dump the sludge in the Pits at the Site in April 1965. DX
1436. Ole Peterson soon ran into financial difficulties, and the contract was
assigned to MIMC in August 1965. PX 128; 68 RR 13, 43-44. At trial, there was a
dispute as to who owned the Site. MIMC contended that it did not actually own the
Site, but that the Site was instead owned by its owner Virgil McGinnes. See, e.g.,
68 RR 55-61. Harris County provided documents from Virgil McGinnes and his
heirs stating that the site was owned by MIMC. CX 4; 57 CR 32303-32312. The
trial court ultimately ruled that, as a matter of law, Virgil McGinnes and his heirs
owned the Site. 62 CR 34702.
24 DX 1436 at 1.
3
be transported by barge.25 The contract required MIMC to have all
necessary permits and licenses and to comply with all laws, rules, and
regulations.26 International Paper required MIMC to perform the work
“in a good and workmanlike manner.”27 International Paper also had
the right to audit MIMC’s records.28 International Paper even withheld
15% of the contract payment to make sure that MIMC paid for all of its
labor, material, and equipment costs.29
International Paper had MIMC pick up the sludge in its barges,
transport the sludge to the Site, and dump the sludge in the Pits. 30
After the sludge—which was mixed with water so that it could be
transported more easily—settled in the Pits, the remaining water from
the sludge/water slurry was barged back to International Paper’s paper
mill.31
25 Id.
26 Id. at 6; 68 RR 18.
27 DX 1436 at 6; 68 RR 18.
28 DX 1436 at 6.
29 Id. at 2.
30 PX 17; 68 RR 41.
31 70 RR 110-111, 119-120; PX 17 at 3.
4
Between 1965 and 1966, International Paper dumped between
125,000 and 130,000 cubic yards of sludge in the Pits.32 That is the
equivalent of filling 38 olympic-sized swimming pools with sludge. 33
The only waste dumped at the Site was International Paper’s sludge
from its Pasadena paper mill.34
The Pits failed, releasing dioxin into the San Jacinto River.
The Pits were dug into the soil, with dirt piled up to create walls
known as levees or berms. 35 The Pits were not covered.36 The Pits were
not lined, so there was nothing separating the sludge from the ground. 37
There was conflicting evidence on the properties of the soil underneath
the sludge. Some evidence showed that the soil was made of clay. 38 But
Harris County provided evidence showing that the soil had a low clay
63 RR 48. The dumping took place between September 1965 and May 1966. 68
32
RR 14.
33 63 RR 48.
34 68 RR 14, 51; 70 RR 120.
35 PX 16; PX 17 at 1; 63 RR 46.
36 PX 17; 71 RR 15.
37 71 RR 25-26.
38 PX 30; 70 RR 134.
5
content, which meant that the soil did not create an impermeable
barrier.39
At the beginning of the disposal, Harris County officials stressed
that the sludge could not be allowed to enter the San Jacinto River. 40
Harris County’s Pollution Control Director reiterated that the “waste
handling operation should be done in a manner which would not allow
any liquid waste to leave the property and escape into the river.” 41 He
made clear that protecting the River “would require some careful
handling.”42
The Pits began to fail soon after they were constructed. By the
end of 1965—just months after the dumping began—International
Paper learned that “heavy rains had washed away a portion of the
outside slope so that the top of the levee had been reduced to about one-
half its original width at two points.”43 A 1966 inspection reflected that
the Pits were already showing signs of seepage. 44
39 63 RR 121-122, 127-130, 134.
40 PX 30
41 Id.; 63 RR 78.
42 PX 30.
43 PX 16 at 1.
44 PX 17 at 2.
6
Internal MIMC documents show that by mid-1968, the Pits were
“completely filled with waste materials and could no longer serve as a
dump site.”45 MIMC’s board of directors determined that the sludge in
the Pits made the land where the Pits were located “worthless.” 46 In
August 1968, MIMC’s board of directors officially determined that the
Pits would “be abandoned as a dump site” and that the land, which had
cost $50,000 to purchase, was now worth “the nominal sum of $1.” 47
No further maintenance was ever done on the Pits after they were
abandoned in 1968.48
Aerial photos show that there was a breach of the levees in 1973. 49
With that breach, water from the San Jacinto River entered the Pits. 50
That breach was never repaired; instead, it actually grew larger over
45 PX 143 at 4.
46 Id.
47 Id. at 4.
48 63 RR 115, 142; 66 RR 34; 68 RR 49-51, 61.
49 63 RR 109.
50 65 RR 162.
7
time.51 Once the Pits were partially covered with water, the dioxin in
the sludge would release into the water daily.52
Surveyor reports show that by July 1, 1989, most of the Pits were
submerged under water.53 Those parts of the Pits remained submerged
through at least March 30, 2008 (the end of the period at issue in this
lawsuit).54 The Site was approximately twenty acres, and only four or
five acres remained above water.55 So approximately 75% of the Site
was submerged under water as of mid-1989, allowing the dioxin in the
sludge to release into the water daily.56 In addition, the area of the San
Jacinto River around the Pits is influenced by the tides, and the action
5165 RR 162 (“[F]rom ‘73 onward all the way into the 2000s, the breach was there
and it stayed there and it enlarged through time.”).
5263 RR 116; 66 RR 37. Dioxin is “hydrophobic,” which means it does not readily
dissolve in water. 63 RR 146. But it would still partially dissolve in water. 63 RR
146, 155, 157. In addition, the dioxin would become attached to microscopic
particles—known as colloids—which would leave the Pits and enter the water. 63
RR 116, 155. So once the Pits were covered with water, the dioxin-contaminated
colloids would readily leave the Pits and enter the surrounding water. Id.
53 PX 1005; 63 RR 107-108; 65 RR 163.
5463 RR 107-108. Harris County ended its claim for civil penalties as of March 30,
2008. 1 SCR 67-68.
55 63 RR 109.
56 Id.; 65 RR 164 (“[T]here is no question in my mind that there were releases of
dioxin coming out of these—these pits. They’re in direct connection now, inundation
from the river on a daily basis, subject to wind, tide, flood, all of that.”).
8
of the tides caused more movement of dioxin from at least the time the
Site was submerged in mid-1989.57
Testing of the San Jacinto River showed that “by far and away the
highest” amount of 2,3,7,8-TCDD was near the Pits, with the dioxin
levels lowering the farther one went from the Pits. 58 The Pits,
therefore, were the dioxin “hot spot,” meaning they were the source of
the dioxin.59 As Harris County’s expert hydrologist explained, “you are
getting these very hot samples, much higher concentrations in and
around and close to the pit, and then significantly decreasing as we go
upstream or downstream.” 60 That leads to the conclusion that “dioxin
from inside the impoundments got outside the impoundments.”61
There was evidence that dredging in the area by a third party also
caused damage to the Pits in the 1990s.62 A dredging barge was
conducting sand-mining activities in the area near the Site, and it
57 65 RR 164-166. The trial court ruled that the jury could not “consider whether
tidal action had any impact at the site before July 1st of 1989.” 66 RR 20.
58 66 RR 26-28.
59 Id.
60 66 RR 30.
61 66 RR 29-30.
62 70 RR 169-174, 195-196.
9
appears that the dredging machine accidentally dug into the Pits. 63
Harris County, however, provided evidence that dredging was not the
sole source of the dioxin in the San Jacinto River.64 And dredging would
not have caused dioxin contamination before the 1990s.65
The EPA designated the Pits as a Superfund site in 2008
because of dioxin contamination from the sludge.
In 2008, the EPA listed the Site as a Superfund site because of the
dioxin contamination.”66 The EPA ordered International Paper and
MIMC to construct a temporary cap over the Site to prevent ongoing
releases of dioxin.67 This lawsuit does not involve claims for violations
that took place after the EPA listed the Site as a Superfund site.68
The EPA is currently considering the appropriate permanent
remedy that will prevent the dioxin from seeping into the San Jacinto
River in the future.69
6370 RR 169-174. It appears that the dredging that cut into the Pits took place
around 1996 or 1997. 70 RR 205-206.
64 66 RR 75.
65 70 RR 205-206.
66 62 RR 10-11 (App. H).
67 8 CR 4735.
68 1 SCR 67-68.
69 8 CR 4736.
10
Harris County sued International Paper for civil penalties
because the company caused, suffered, allowed, or permitted
violations of Texas environmental laws.
In December 2011, Harris County sued International Paper,
MIMC, and MIMC’s corporate parents Waste Management, Inc. and
Waste Management of Texas, Inc. for civil penalties based on their
violation of Texas environmental laws.70
The Texas Water Code imposes civil penalties on those who
“cause, suffer, allow, or permit” violations of Texas environmental laws
or Texas Commission on Environmental Quality (“TCEQ”) rules.71 The
civil penalty is between $50 and $25,000 per day per violation, “as the
court or jury considers proper,” and “[e]ach day of a continuing violation
is a separate violation.”72
The Texas Water Code allows local governments to sue for civil
penalties for violations that occur in their jurisdiction. 73 The TCEQ is
“a necessary and indispensable party” to the suits brought by local
70 1 CR 73.
71TEX. WATER CODE § 7.101; TEX. WATER CODE § 7.102. Texas environmental laws
have been amended several times over the past decades, but since at least 1961 it
has been illegal to cause or allow the discharge of pollution into the waters of the
State without a permit. Acts 1961, 57th Leg. 1st C.S., ch. 42, § 9.
72 TEX. WATER CODE § 7.102.
73 TEX. WATER CODE § 7.351(a).
11
governments.74 The civil penalties recovered are divided equally
between the local government and the State.75
Harris County sued International Paper for violating the provision
of the Texas Water Code that prohibits discharging industrial waste
into, or adjacent to, the waters in the State without a permit. 76 Harris
County also sued International Paper for violating the provisions of the
Texas Administrative Code that prohibit causing, suffering, allowing, or
permitting the disposal of industrial solid waste in a manner that (1)
causes the discharge, or imminent threat of discharge, of industrial
solid waste into, or adjacent to, the waters in the State without a
permit; (2) endangers the public health and welfare; or (3) causes the
creation or maintenance of a nuisance.77
74 TEX. WATER CODE § 7.353.
75Former TEX. WATER CODE § 7.107 (amended by Acts 2015, 84th Leg., ch. 542, § 1).
Texas Water Code § 7.107 was amended in 2015 to limit the local governments’
recovery to half of the first $4.3 million in civil penalties, with any amount above
$4.3 million awarded to the State. TEX. WATER CODE § 7.107. This new provision
applies only to violations that take place on or after September 1, 2015, so it does
not apply to this case. Acts 2015, 84th Leg., ch. 542, § 3.
76 1 SCR 67-69; TEX. WATER CODE § 26.121(a).
77 1 SCR 69-70; 30 TEX. ADMIN. CODE § 335.4.
12
The trial court refused to allow evidence regarding the dangers
of dioxin at trial.
Because this case was about the effect of dioxin contamination on
the public health and welfare, Harris County attempted to introduce
evidence regarding the dangers of dioxin exposure. 78 The trial court,
however, expressly refused to allow Harris County or the State to
introduce “evidence related to dioxin’s health effects, toxicology, and
dangerousness.”79 The trial court prohibited any statement to the jury
about the risk of harm from dioxin exposure except for the following
stipulation: “[i]n July 1985, the EPA listed dioxin as a hazardous
substance. As a result of its determination that dioxin may be harmful
to the public health or the environment, the EPA listed the site as a
Superfund site in 2008, due to the presence of dioxin.”80
Harris County attempted to introduce Texas Department of
Health Fish and Shellfish Consumption Advisories for the San Jacinto
78 See OPX 3; OPX 7; OPX 15; OPX 18; OPX 19; 74 RR 47-60.
79 62 CR 34775 (“[T]he Court EXCLUDES evidence related to dioxin’s health
effects, toxicology, and dangerousness except as set forth in the parties’
stipulation read to the jury at the beginning of trial”) (first emphasis in original;
second emphasis added); 62 CR 34777 (same); 62 CR 34793 (same).
80 62 RR 10-11 (App. H); 62 CR 34775; 62 CR 34777; 62 CR 34793.
13
River.81 The first advisory, which was issued in 1990, warned of the
dangers of eating catfish and blue crabs because of the dioxin
contamination.82 The second advisory, which was issued in 2001,
warned of the dangers of eating any fish caught from “the San Jacinto
River downstream of the U.S. Highway 90 bridge,” which includes the
area of the Pits.83 The trial court refused to admit the advisories.84
Harris County attempted to introduce a Texas Department of
State Health Services’ Public Health Assessment that specifically
addressed public-health effects from exposure to dioxin at the Site. 85
The Public Health Assessment concluded that prolonged exposure to
contaminated sediments from the Site could increase the risk of
cancer.86 The Public Health Assessment stated that “[d]ioxins have
been detected in sediments at the [Site] at levels that would possibly
cause unacceptably high risks for cancer (greater than one out of 10,000
81 74 RR 57; OPX 15.
82 OPX 15 at 3.
83 Id. at 2.
84 74 RR 57.
85 74 RR 51-52; OPX 7.
86 OPX 7 at 10.
14
people exposed).” 87 The Public Health Assessment also concluded that
“[c]onsuming fish or crabs caught near the [Site] for periods of one year
or longer could harm people’s health by increasing possible risks for
cancer.” 88
The Public Health Assessment also addressed the dangers of
dioxin in general. It stated that the International Agency for Research
on Cancer and the World Health Organization have listed 2,3,7,8-
TCDD—the type of dioxin found in International Paper’s sludge—as a
Class 1 carcinogen, which means there is sufficient evidence that it is
carcinogenic to humans.89 The Public Health Assessment also
explained that exposure to dioxin can cause chloracne, which is a skin
rash with acne-like lesions that occur mainly on the face, neck, and
upper body.90 The trial court refused to admit the Public Health
Assessment, or any reference to its existence, or any statement from the
87 Id.
88 Id. at 13-14.
89 Id. at 40.
90 Id. at 38.
15
International Agency for Research on Cancer about dioxin being a Class
1 carcinogen.91
Harris County attempted to introduce the EPA’s Decision
Document for the Time Critical Removal Action at the Site. 92 This EPA
report discussed releases from the Site and the public-health hazards
associated with the Site.93 The trial court refused to admit the EPA
report.94
Harris County attempted to introduce the EPA’s Unilateral
Administrative Order that required International Paper and MIMC to
conduct a remedial investigation and feasibility study regarding the
Site.95 The EPA’s order found that “[a] large portion of the ponds [at
the Site] are continually inundated by the San Jacinto River and
contaminated sediment within the source area are in direct contact with
the river water.”96 The EPA’s order also found that “[c]hemical analysis
confirms that dioxin … contaminants are entering the San Jacinto
91 74 RR 51-52, 55.
92 74 RR 49; OPX 3.
93 74 RR 49; OPX 3.
94 74 RR 55.
95 74 RR 53-54; OPX 11.
96 OPX 11 at 5.
16
River. Chemical analysis documented the presence of numerous dioxin
congeners in the source sediments.”97 The EPA’s order further found
that “[b]oth human and ecological health is threatened by releases of
hazardous substances from the [Site].”98
The EPA’s order also found that 2,3,7,8-TCDD—the type of dioxin
in International Paper’s sludge—“is considered the most toxic of the
dioxins.”99 The EPA noted that the toxicities of other dioxins “are
usually expressed as a fraction of the toxicity attributed to 2,3,7,8-
TCDD.” 100 The EPA’s order found that the “most common health effect
in people exposed to large amounts of dioxins, in particular 2,3,7,8-
TCDD, is chloracne.”101 The EPA’s order noted that the “World Health
Organization has determined that 2,3,7,8-TCDD is a human
carcinogen.”102 The trial court refused to admit the EPA’s order or the
determination of the World Health Organization.103
97 Id.
98 Id. at 6.
99 Id.
100 Id.
101 Id.
102 Id. at 7.
103 74 RR 55.
17
Harris County also attempted to introduce testimony from several
expert witnesses regarding the dangers of the dioxin contained at the
Site, but the trial court excluded their testimony.104 Harris County
designated three experts on dioxin’s dangers: Dr. Arnold Schecter, Dr.
Wayne Snodgrass, and Dr. James Olson.105 Dr. Schecter was a
professor in the Environmental and Occupational Medicine Program at
the University of Texas School of Public Health. 106 He has published
over 100 scientific papers on dioxins in peer-reviewed scientific
journals.107 Dr. Snodgrass, a medical doctor with a PhD in
pharmacology, is a professor in the Department of Pharmacology and
Toxicology at the University of Texas Medical Branch, medical director
of the Texas Poison Control Center—Houston/Galveston, and the past
president of the American Academy of Clinical Toxicology. 108 Dr. Olson
is a distinguished professor in the Department of Pharmacology and
104 62 CR 34775; 62 CR 34777; 62 CR 34793.
105 37 CR 21916.
1062 SCR ___ (Harris County’s Reply to Defendants’ Motion to Exclude Drs. Olson,
Schecter, and Snodgrass (“Harris County’s Reply”) at Ex. D) (filed Aug. 20, 2014).
107 Id.
108 2 SCR ___ (Harris County’s Reply at Exs. 271 & F).
18
Toxicology at the University of Buffalo School of Medicine. 109 For over
35 years, his research has concentrated on the pharmacokinetics and
toxicology of dioxin and related compounds. 110 He has assisted the EPA
in setting ambient water quality criteria for dioxin, and has written
over 50 peer-reviewed studies on dioxin and related compounds. 111
These witnesses would have provided evidence showing that:
● The International Agency for Research on
Cancer—one of the primary scientific bodies for
determining which substances cause cancer in
humans—has determined that there is sufficient
evidence that 2,3,7,8-TCDD can cause cancer in
humans.112
● The United States Department of Health and
Human Services’ National Toxicology Program
has determined that 2,3,7,8-TCDD can cause cancer
in humans.113
● The World Health Organization has determined
that 2,3,7,8-TCDD can cause cancer in humans. 114
● Studies in humans have reported that low-level
exposure to TCDD produces adverse female
reproductive effects, changes in immune system
109 2 SCR ___ (Harris County’s Reply at Exs. C & E).
110 Id.
111 Id.
112 Id.
113 2 SCR ___ (Harris County’s Reply at Ex. C).
114 2 SCR ___ (Harris County’s Reply at Ex. D).
19
components, developmental dental defects, and
diabetes.115
International Paper sought to exclude this testimony regarding
the dangers of dioxin because the experts did not have epidemiological
studies showing a doubling of the risk of specific cancers or other
diseases.116 International Paper argued that the Texas Supreme
Court’s ruling in Merrell Dow Pharmaceuticals, Inc. v. Havner applied
in this government civil-penalty case.117 Havner held that
epidemiological studies showing a doubling of the risk of a disease are
required to show causation in toxic-tort personal-injury cases.118 Over
Harris County’s objections, the trial court granted International Paper’s
motions and excluded the testimony of Dr. Schecter, Dr. Snodgrass, and
Dr. Olson and any other evidence of the harmful effects of dioxin, except
for two sentences contained in the stipulation referenced above. 119
115 2 SCR ___ (Harris County’s Reply at Ex. C).
11623 CR 14409, 14416-14425; 24 CR 15373, 15381-15388; 26 CR 16172, 16183-
16196.
117Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997); 23 CR 14409,
14416-14425; 24 CR 15373, 15381-15388; 26 CR 16172, 16183-16196.
118 Havner, 953 S.W.2d at 714.
11962 CR 34775; 62 CR 34777; 62 CR 34793. At trial, Harris County made an offer
of proof regarding the testimony of Dr. Schecter, Dr. Snodgrass, and Dr. Olson. 74
RR 58-60. In its offer, Harris County adopted by reference the affidavits and
deposition testimony contained in its response to the motions to exclude those
20
So in this case in which Harris County was seeking to establish
that International Paper caused a threat to public health and welfare
and a nuisance, the trial court excluded all evidence regarding dioxin’s
dangers, except for two sentences contained in the stipulation. The trial
court ruled that the findings of the following agencies were junk science
under Havner and not entitled to consideration by a Harris County jury:
The Texas Department of Health, the United States Department of
Health and Human Services’ National Toxicology Program, the
International Agency for Research on Cancer, the World Health
Organization, and the United States EPA.120
The trial court refused to submit to the jury questions on
whether International Paper caused, suffered, allowed, or
permitted a public endangerment or a nuisance.
Neither International Paper, nor the other defendants, moved for
directed verdict on Harris County’s endangerment-of-public-health or
nuisance claims, and the trial court did not dismiss those claims sua
sponte. But even though Harris County pled those claims, and the
witnesses. 74 RR 59; see 37 CR 21916; 2 SCR ___ (Harris County’s Reply at Exs.
271, 307, & C-F).
120 74 RR 55.
21
stipulation and other evidence supported those claims, the trial court
refused to submit them to the jury. 121
At the formal charge conference, Harris County requested that the
trial court submit the endangerment-of-public-health and nuisance
claims to the jury, but the trial court refused those requests. 122 The
record does not contain any explanation.
The trial court instructed the jury that International Paper no
longer owned its dioxin-contaminated paper-mill sludge after it
was dumped in the Pits.
International Paper claimed that even though it created the
sludge as a byproduct of its papermaking process, it did not own the
sludge when it was dumped in the Pits.123 There was no bill of sale or
other document stating that the ownership of the sludge transferred
from International Paper to another entity. Instead, International
Paper claimed that the ownership of the sludge either (1) passed to
MIMC when MIMC picked the sludge up for disposal, or (2) passed to
121 63 CR 35172- 35199 (App. A).
122 63 CR 35097 (App. E); see also 63 CR 35127 (App. F).
123 34 CR 20513; 56 CR 31747; 57 CR 32187.
22
Virgil McGinnes, the owner of the Pits, when the sludge was dumped
there, because it supposedly became a fixture of the real property. 124
International Paper moved for summary judgment on the ground
that it did not own the sludge and, therefore, could not have caused,
suffered, allowed, or permitted the violations of environmental law
related to the sludge. 125 The trial court denied the motion, stating that
there was a fact issue on who owned the sludge.126 Harris County tried
its case to the jury based upon the trial court’s determination that there
was a fact issue on whether International Paper owned the sludge. 127
After denying International Paper’s summary-judgment and
directed-verdict motions, the trial court changed its mind on this issue
at the end of the case and instructed the jury in the charge that “as of
1966, [International Paper] no longer owned the waste.” 128 Harris
County objected to that instruction on the ground that the ownership of
the sludge after disposal was a disputed issue and that International
124 34 CR 20513; 56 CR 31747; 57 CR 32187.
125 34 CR 20513.
126 62 CR 34781; 62 CR 34784; 57 RR 123; 59 RR 8-10.
127See 62 RR 41 (Harris County told the jury during opening statement that
International Paper “continued to own the sludge after delivering it to MIMC.”).
128 63 CR 35177, 35183 (App. A).
23
Paper had not conclusively established that it ceased to own the
sludge.129 Harris County also requested that the trial court ask the jury
questions regarding whether the sludge had become a fixture. 130 The
trial court overruled Harris County’s objections, refused its requests,
and instructed the jury that International Paper did not own the
sludge.131
The other defendants settled at the end of the trial before
closing arguments.
After the conclusion of the evidence—and right before closing
arguments—Defendants Waste Management and MIMC settled with
Harris County.132 Harris County’s claims against the defendants other
than International Paper were severed into a separate cause of action,
leaving International Paper as the only defendant. 133
129 75 RR 12, 21. The formal charge conference was held before MIMC and Waste
Management settled with Harris County. 75 RR 1-92. After the settlement, the
trial court revised the jury charge to take out questions regarding MIMC and Waste
Management. 76 RR 30. That shortened the jury charge from twenty questions to
twelve. Id. The parties agreed that there was no need for a new formal charge
conference and stipulated that the objections and requests at the formal charge
conference would be considered having been made to the new-numbered questions
in the revised jury charge. 76 RR 29-33.
130 63 CR 35113-35116 (App. G).
131 75 RR 12, 21; 63 CR 35113-35116 (App. G); 63 CR 35177, 35183 (App. A).
132 74 RR 46; 77 RR 5, 10.
133 77 RR 7; 62 CR 34704.
24
The jury found for International Paper.
In the jury charge, the trial court asked the jury two liability
questions.134 In Question One, it asked the jury if International Paper:
[C]aused, suffered, allowed or permitted the discharge
of industrial waste containing dioxin into or adjacent to
any water in the state at any time from February 15,
1973, until March 30, 2008.135
That question was based on Harris County’s claim that International
Paper violated the Texas Water Code.136 In Question Four, it asked the
jury if International Paper:
[C]aused suffered allowed, or permitted the handling or
disposal of industrial solid waste containing dioxin in
such a manner so as to cause the discharge or
imminent threat of discharge of industrial solid waste
containing dioxin into or adjacent to the water in the
State from December 31, 1975, until March 30, 2008.137
That question was based on Harris County’s claim that International
Paper violated the Texas Administrative Code.138
The jury answered “No” to both questions. 139 The trial court
entered final judgment consistent with the jury’s verdict. 140 The final
134 63 CR 35172-35199 (App. A).
135 63 CR 65177 (App. A).
136 1 SCR 67-69; TEX. WATER CODE § 26.121(a).
137 63 CR 65183 (App. A).
138 1 SCR 69-70; 30 TEX. ADMIN. CODE § 335.4.
25
judgment states that Harris County shall “recover nothing on all claims
against Defendant International Paper Company.” 141 Harris County
filed a motion for new trial, which the trial court denied.142
STANDARD OF REVIEW
The trial court is required “to submit requested questions to the
jury if the pleadings and any evidence support them.”143 The Supreme
Court has emphasized that the trial court has absolutely no discretion
to disobey this requirement.144 The issue of whether the charge
submitted the controlling issues is a question of law, which this Court
reviews de novo.145
This Court reviews the trial court’s submission of a particular
instruction for abuse of discretion.146 An instruction is proper if it
assists the jury, is supported by the pleadings or evidence, and
139 63 CR 65177, 65183 (App. A).
140 Cf. 63 CR 35172-35199 (App. A) with 64 CR 35217-35222 (App. B).
141 64 CR 35220 (App. B).
142 64 CR 65226; 64 CR 35637 (App. C).
143 Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992); TEX. R. CIV. P. 278.
144Elbaor, 845 S.W.2d at 243 (referring to the requirement as “a substantive, non-
discretionary directive to trial courts”).
145Hamid v. Lexus, 369 S.W.3d 291, 295 (Tex. App.—Houston [1st Dist.] 2011, no
pet.).
146 Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006).
26
accurately states the law.147 The Supreme Court has held that “[c]harge
error is generally considered harmful if it relates to a contested, critical
issue.”148
A trial court has “no discretion” in determining what the law is or
in properly applying the law.149 This Court, therefore, reviews legal
issues de novo, and the trial court automatically abused its discretion if
it incorrectly interpreted, or improperly applied, the law. 150 The trial
court also abused its discretion if it acted in an arbitrary or
unreasonable manner without reference to any guiding rules or
principles.151
This Court reviews the trial court’s decision to exclude evidence
for abuse of discretion.152 A trial court’s improper exclusion of evidence
is reversible error if “the judgment turns on the particular evidence
excluded.”153
147 Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162, 166 (Tex. 2002).
148 Thota v. Young, 366 S.W.3d 678, 687 (Tex. 2012).
149 In re Dep’t of Family & Protective Servs., 273 S.W.3d 637, 642 (Tex. 2009).
150 Id. at 642-43.
151 Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003).
152 In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005).
153City of Brownsville v. Alvarado, 897 S.W.2d 750, 754 (Tex. 1995); see also Gulley
v. Davis, 321 S.W.3d 213, 217 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).
27
SUMMARY OF ARGUMENT
The trial court erred when it refused to submit to the jury Harris
County’s issues on whether International Paper caused, suffered,
allowed, or permitted an endangerment of the public health and welfare
or a nuisance. Harris County pled those claims, so it was entitled to
jury issues on them—and it was reversible error to not submit the
issues—if the claims were supported by some evidence.
There is no dispute that International Paper, through its contract
with MIMC, dumped dioxin-containing sludge in the Pits, and
International Paper stipulated that the EPA has determined that dioxin
is a hazardous substance. This evidence was sufficient to support jury
issues on Harris County’s endangerment-of-public-health and nuisance
claims.
Because the trial court improperly excluded all of Harris County’s
evidence showing the dangers of dioxin, this Court should still reverse
even if it determines that the admitted evidence was insufficient. The
trial court erred in determining that the jury could not be permitted to
consider the findings of the Texas State Department of Health, the
EPA, the World Health Organization, and the International Agency for
28
Research on Cancer, and in excluding testimony from Harris County’s
three experts on dioxin’s health effects. The trial court erred in
determining that juries cannot consider evidence of adverse health
effects unless those health effects double the risk to the public, as
Havner requires for establishing causation in toxic tort cases.
The public-health and nuisance issues are independent of one
another. So if this Court determines that the trial court erred in
refusing to submit the public-endangerment issue, then it should
reverse regardless of its determination of the nuisance issue. And,
similarly, this Court should reverse if it determines that the trial court
erred in refusing to submit the nuisance issue, regardless of its
determination on the public-endangerment issue.
The trial court also erred when it changed its mind and instructed
the jury that, as of 1966, International Paper no longer owned the
sludge that it dumped in the Pits. There is no dispute that it was
International Paper’s sludge—and only International Paper’s sludge—
that was dumped in the Pits. And International Paper did not identify
any document showing that it ever transferred the ownership of its
sludge. International Paper, therefore, had to conclusively establish
29
that the ownership of its sludge passed to another person or entity by
operation of law. International Paper did not meet its burden. Because
the ownership of the sludge was a contested, critical issue, the trial
court’s improper instruction was reversible, harmful error.
Each of these grounds is sufficient—by itself—to reverse the trial
court’s judgment and remand for retrial. On behalf of the people of
Harris County, the County should be permitted to try its entire case to
the jury, not the erroneously abridged version of that case that the trial
court permitted.
ARGUMENT
This Court should reverse the judgment and remand this case for
retrial because the trial court (1) improperly refused to submit to the
jury Harris County’s claims of endangerment of the public health and
welfare and for nuisance, and (2) improperly instructed the jury that
International Paper ceased owning the sludge as of 1966.
30
I. The trial court erred when it refused to submit to the jury Harris
County’s claims for endangerment of the public health and for
nuisance.
Harris County’s pleadings included claims that International
Paper caused, suffered, allowed, or permitted (1) the endangerment of
the public health and welfare,154 and (2) the creation and maintenance
of a nuisance. 155 Harris County provided evidence supporting those
claims and requested jury issues on them. 156 The trial court, therefore,
was required to submit those issues to the jury. 157
The trial court erred when it refused to submit these issues. 158
This Court, therefore, should reverse the judgment and remand for a
retrial that includes the issues of endangerment of the public health
and welfare, as well as nuisance.
A. The trial court erred when it refused to submit Harris
County’s claim for endangerment of the public health.
The Texas Administrative Code expressly prohibits causing,
suffering, allowing, or permitting the handling or disposal of industrial
154 1 SCR 69-70; 30 TEX. ADMIN. CODE § 335.4(3).
155 1 SCR 69-70; 30 TEX. ADMIN. CODE § 335.4(2).
156 See §§ I(A)-(B) below; 63 CR 35097-35098 (App. E); 63 CR 35127 (App. F).
157 Elbaor, 845 S.W.2d 243.
158 63 CR 35172-35199 (App. A); 63 CR 35097-35098 (App. E); 63 CR 35127 (App. F).
31
solid waste in a manner that causes “the endangerment of the public
health and welfare.” 159 There is no question that International Paper
caused the disposal of industrial solid waste in the Pits.
The Texas Administrative Code defines “industrial solid waste” as
“solid waste resulting from or incidental to any process of industry or
manufacturing.” 160 The Texas Administrative Code states that “solid
waste” includes “discarded material, including solid, liquid, [or]
semisolid … materials resulting from industrial … operations.”161
International Paper admitted that:
● The sludge was waste created as a result of
International Paper’s papermaking process;162
● Its sludge was dumped in the Pits; and163
● The only waste ever dumped in the Pits was the
sludge from its paper-mill operations.164
159 30 TEX. ADMIN. CODE § 335.4(3).
160 30 TEX. ADMIN. CODE § 335.1(80).
161 30 TEX. ADMIN. CODE § 335.1(140).
16265 RR 36-37; 68 RR 14; see also 63 RR 71 (International Paper’s paper-mill
sludge is “industrial waste”).
163 65 RR 36-37; 68 RR 14.
164 68 RR 14; 68 RR 51; 70 RR 120.
32
Because the sludge was discarded material that resulted from
International Paper’s industrial process, it is—by definition—industrial
solid waste.165
The operative question, then, is whether there is evidence that the
sludge at the Pits endangered the public health and welfare. This
Court can easily answer that question because International Paper
stipulated at the beginning of trial that it did.166
International Paper admitted that the sludge it dumped in the
Pits contained dioxin.167 International Paper stipulated that “[i]n July
1985, the EPA listed dioxin as a hazardous substance” and determined
that “dioxin may be harmful to the public health or the environment.” 168
The trial court stated that the stipulation was evidence of dioxin’s
“dangerousness.”169
165 30 TEX. ADMIN. CODE § 335.1(80).
166 62 RR 9-11 (App. H).
167 70 RR 178.
16862 RR 10-11 (App. H). The trial court based its decision to exclude extensive
evidence on the dangers of dioxin in part on the fact that International Paper and
the other defendants had stipulated that the EPA had determined that dioxin was
dangerous. 62 CR 34775; 62 CR 34777; 62 CR 34793; 74 RR 58.
16962 CR 34775 (the trial court stated that it was excluding “evidence related to
dioxin’s … dangerousness except as set forth in the parties’ stipulation”)
(emphasis added); 62 CR 34777 (same); 62 CR 34793 (same).
33
A stipulation “is an agreement, admission, or concession made in a
judicial proceeding by the parties relating to matters incident to the
proceedings.”170 A stipulation “obviates the need for proof on a litigable
issue.”171 This Court has held that a “stipulation constitutes a binding
contract between the parties and the court.”172
International Paper’s stipulation that the EPA designated dioxin
as a “hazardous substance” is some evidence that dioxin is a danger to
public health.173 Harris County, therefore, was entitled to the
submission on this issue, and the trial court erred when it refused to
submit the issue to the jury. The trial court’s refusal to submit an issue
supported by the pleadings and evidence is reversible error, requiring
reversal of the judgment and remand for retrial. 174
170Hansen v. Academy Corp., 961 S.W.2d 329, 335 (Tex. App.—Houston [1st Dist.]
1997, writ denied).
171 Id.
Rosenboom Mach. & Tool, Inc. v. Machala, 995 S.W.2d 817, 820 (Tex. App.—
172
Houston [1st Dist.] 1999, pet. denied).
173 62 RR 10-11 (App. H).
174Hiles v. Arnie & Co., 402 S.W.3d 820, 830 (Tex. App.—Houston [14th Dist.] 2013,
pet. denied) (“If there is some evidence to support the submission, the trial court
commits reversible error if it fails to submit the instruction.”).
34
B. The trial court erred when it refused to submit Harris
County’s claim for nuisance.
Equally important as Harris County’s claim that International
Paper endangered public health and welfare, is Harris County’s claim
that International Paper created a nuisance. The Texas Administrative
Code also prohibits causing, suffering, allowing, or permitting the
handling or disposal of industrial solid waste in a way that causes “the
creation and maintenance of a nuisance.” 175 A nuisance is “a condition
that amounts to an unreasonable interference with a right common to
the general public.”176
Harris County pled and introduced evidence that International
Paper violated this provision of the Texas Administrative Code by
creating and maintaining a nuisance, entitling it to a jury issue.177 The
trial court erred when it refused to submit the nuisance issue to the
jury. This Court, therefore, should reverse the judgment on this basis
and remand for retrial.
175 30 TEX. ADMIN. CODE § 335.4(2).
176In re Premcor Ref. Group, Inc., 233 S.W.3d 904, 907 (Tex. App—Beaumont 2007)
(orig. proceeding); Jamail v. Stoneledge Condominium Owners Ass’n, 970 S.W.2d
673, 676 (Tex. App.—Austin 1998, no pet.); RESTATEMENT (SECOND) OF TORTS §
821B(1).
177 1 SCR 69-70; see §§ I(B)(1)-(2) below; Elbaor, 845 S.W.2d at 243.
35
1. International Paper’s stipulation is evidence that the
dioxin in the Pits created a nuisance.
International Paper’s stipulation that dioxin is a hazardous
substance is also sufficient evidence that it created a nuisance. With
that stipulation, International Paper agreed that the sludge that it
dumped in the Pits contains a “hazardous substance” that is “harmful to
the public health or the environment.” 178
The contamination with a hazardous substance creates “a
condition that amounts to an unreasonable interference with a right
common to the general public,” which is the definition of a nuisance. 179
Dumping sludge that contains dioxin, a hazardous substance, into pits
that slide beneath the surface of the San Jacinto River is the creation of
a nuisance. The trial court, therefore, erred when it refused to submit
the nuisance issue to the jury.
2. There is sufficient evidence in the record regarding
nuisance in addition to International Paper’s
stipulation.
Even if this Court were to hold that the stipulation was not
sufficient evidence, there is additional evidence that International
178 62 RR 10-11 (App. H).
179In re Premcor Ref., 233 S.W.3d at 907; Jamail, 970 S.W.2d at 676; RESTATEMENT
(SECOND) OF TORTS § 821B(1).
36
Paper created a nuisance. The trial court, therefore, erred when it
refused to submit the nuisance issue to the jury.
There has been extensive dredging of the San Jacinto River in the
area of the Site, including dredging for sand-mining purposes. 180 The
fact that the Pits—which International Paper admits are contaminated
with its dioxin—are now under the San Jacinto River greatly limits the
ability of the public to dredge in that area of the River.181 International
Paper itself contends that dredging near the Site accidentally cut into
the Pits, releasing dioxin into the River.182 The dioxin contamination
caused the Army Corps of Engineers to suspend dredging operations
near the Site.183 The dioxin in the sludge that International Paper
dumped in the Pits, therefore, has curtailed the ability to dredge and
mine sand in the area. That alone is evidence that International Paper
created a nuisance. 184
180 70 RR 175-176.
181 PX 1005; 70 RR 178; 71 RR 26.
182 70 RR 173, 177-178; 71 RR 27-28.
183 70 RR 73, 177-178.
184In re Premcor Ref., 233 S.W.3d at 907; Jamail, 970 S.W.2d at 676; RESTATEMENT
(SECOND) OF TORTS § 821B(1).
37
It has long been held that pollution interfering with fishing is a
nuisance.185 Harris County provided evidence that people fished at the
Site.186 The contamination of the Site with dioxin, which the EPA has
found to be a hazardous substance, interferes with the public’s ability to
fish at the Site.187 That alone created a nuisance.
Because most of the Site has been inundated by the San Jacinto
River since mid-1989, those portions of the Site are now part of the San
Jacinto River, which means that the riverbed of the San Jacinto River is
now contaminated with dioxin.188 Because portions of the Pits are now
part of the San Jacinto River’s riverbed, the ownership of those portions
of the Pits passed from private hands to the public. 189 The public’s
ability to make use of that portion of the riverbed has been extremely
185RESTATEMENT (SECOND) OF TORTS § 821B(1) cmt. g; Texas Gulf Sulphur Co. v.
State, 16 S.W.2d 408, 410-11 (Tex. Civ. App.—Galveston 1929, no writ); State ex rel.
Wear v. Springfield Gas & Elec. Co., 204 S.W. 942, 945-46 (Mo. 1918).
186 64 RR 189-194.
187 62 RR 10-11 (App. H).
188 PX 1005; 63 RR 107-108; 65 RR 163.
TH Inv., Inc. v. Kirby Inland Marine, LP, 218 S.W.3d 173, 182-84 (Tex. App.—
189
Houston [14th Dist.] 2007, pet. denied).
38
curtailed because of the dioxin contamination.190 That alone is evidence
that International Paper created a nuisance. 191
Because Harris County provided evidence that International
Paper caused, suffered, allowed, or permitted the creation or
maintenance of a nuisance, the trial court erred when it refused to
submit the nuisance issue to the jury.
C. The trial court erred when it excluded evidence on
endangerment and nuisance.
International Paper may argue that the stipulation and other
evidence were insufficient to support a jury submission on
endangerment of the public health and welfare or nuisance. While
Harris County disagrees with that argument as explained above, this
Court should order a retrial even if it were to determine that the
evidence on these issues was insufficient.
A court cannot improperly exclude evidence on an issue and then
penalize a party for failing to provide evidence on that issue. This
Court, therefore, should grant a retrial based on the trial court’s
190 62 RR 10-11 (App. H).
191In re Premcor Ref., 233 S.W.3d at 907; Jamail, 970 S.W.2d at 676; RESTATEMENT
(SECOND) OF TORTS § 821B(1).
39
improper exclusion of the evidence regarding dioxin’s dangers to public
health and of nuisance.
1. The trial court erred when it excluded the government
reports on dioxin’s health risks.
Much of the excluded evidence came from reports prepared by the
United States and Texas governments regarding the Site.192 Under
Texas Rule of Evidence 803(8), government reports setting out “factual
findings from a legally authorized investigation” are admissible unless
“the source of information or other circumstances indicate a lack of
trustworthiness.” 193 Pursuant to Rule 803(8), these government reports
were admissible regardless whether Havner applies in government
civil-penalty cases because they are not expert testimony. 194
International Paper did not establish that the EPA and Texas
State Department of State Health Services reports were not
trustworthy. And these government reports were relevant because they
related directly to the issue of dioxin’s dangerousness.195 The trial
court, therefore, erred when it excluded the evidence from the
192 OPX 3; OPX 7; OPX 11; 74 RR 47-58.
193 TEX. R. EVID. 803(8).
194 Havner, 953 S.W.2d at 713-14.
195 TEX. R. EVID. 401.
40
government reports because they were admissible under Texas Rule of
Evidence 803(8) as government reports setting out “factual findings”
from “legally authorized investigation[s].” 196
2. The trial court erred in using Havner to determine the
admissibility of evidence regarding dioxin’s health
risks.
Harris County attempted to introduce evidence from its experts
Dr. Schecter, Dr. Snodgrass, and Dr. Olson to show the dangers of
dioxin.197 International Paper objected that the evidence of dioxin’s
dangers was not admissible under the Texas Supreme Court’s ruling in
Merrell Dow Pharmaceuticals, Inc. v. Havner because the studies did
not show a doubling of the risk of cancers and other conditions. 198 The
trial court excluded the evidence of dioxin’s dangers based on
International Paper’s objection.199
The trial court erred in excluding the evidence of dioxin’s dangers
because Havner does not limit the admissibility of evidence regarding
the general dangerousness of a substance in an environmental civil-
196 TEX. R. EVID. 803(8).
197 See OPX 3; OPX 7; OPX 15; OPX 18; OPX 19; 74 RR 47-60.
198Havner, 953 S.W.2d 706; 23 CR 14409, 14416-14425; 24 CR 15373, 15381-15388;
26 CR 16172, 16183-16196.
199 62 CR 34775; 62 CR 34777; 62 CR 34793.
41
penalty case brought by the government. Instead, Havner’s doubling-of-
the-risk requirement applies in toxic-tort cases where a plaintiff is
seeking to hold a defendant liable for causing a specific injury to the
plaintiff. Harris County did not attempt to link dioxin to any specific
person’s injury in an attempt to recover damages for that injury, so
Havner does not apply.
In a tort case, the question is whether the defendant’s conduct
caused the plaintiff’s injury.200 The plaintiff cannot prevail unless he
can show that it is more likely than not that the defendant’s conduct
caused his injury.201 In Havner, the Supreme Court addressed how this
well-recognized more-likely-than-not rule plays out in the toxic-tort
context.202 The Supreme Court held that a plaintiff could not show that
it was more likely than not that the defendant’s product caused his
injury unless the scientific studies showed that exposure to the
defendant’s product more than doubled the risk of the injury. 203
200 Bostic v. Georgia-Pac. Corp., 439 S.W.3d 332, 342-43 (Tex. 2014).
201 Id.; Parker v. Employers Mut. Liab. Ins. Co., 440 S.W.2d 43, 47 (Tex. 1969).
202Havner, 953 S.W.2d at 714 (noting that the case was addressing “proof of
causation in a toxic tort case”) (emphasis added).
203 Id. at 714-20.
42
The Supreme Court has repeatedly held that Havner applies in
toxic-tort cases. 204 But there are no cases that have held that Havner
applies when the government is seeking to impose civil penalties for
violating environmental laws. And there are certainly no cases holding
that Havner applies when the government is seeking to impose civil
penalties for endangering the public health or creating a nuisance.
The fact that Havner‘s doubling-of-the-risk requirement does not
apply is apparent from the Supreme Court’s explanation of its holding.
In explaining the importance of the doubling-of-the-risk requirement in
Havner, the Supreme Court said:
Assume that a condition naturally occurs in six out of
1,000 people even when they are not exposed to a
certain drug. If studies of people who did take the drug
show that nine out of 1,000 contracted the disease, it is
still more likely than not that causes other than the
drug were responsible for any given occurrence of the
disease since it occurs in six out of 1,000 individuals
anyway. Six of the nine incidences would be
statistically attributable to causes other than the drug,
and therefore, it is not more probable that the drug
204See, e.g., Borg-Warner Corp. v. Flores, 232 S.W.3d 765, 772 (Tex. 2007); BIC Pen
Corp. v. Carter, 346 S.W.3d 533, 545 (Tex. 2011) (holding that Havner applies in
toxic-tort cases and refusing to apply Havner to manufacturing-defect product-
liability cases). The Supreme Court has also applied Havner in pharmaceutical
cases when the issue is whether epidemiological evidence shows that the
defendant’s drug caused the plaintiff’s injury, which is in many ways similar to the
inquiry in toxic-tort cases. See Merck & Co. v. Garza, 347 S.W.3d 256, 265-66 (Tex.
2011).
43
caused any one incidence of disease. This would only
amount to evidence that the drug could have caused
the disease. However, if more than twelve out of 1,000
who take the drug contract the disease, then it may be
statistically more likely than not that a given
individual’s disease was caused by the drug. 205
The doubling-of-the-risk requirement, therefore, is based on the need in
toxic-tort cases to show that it is more likely than not that the
defendant’s product caused the specific plaintiff’s particular injury.
By contrast, in an environmental civil-penalty case brought by the
government, the question of whether the defendant’s waste caused a
particular person to contract a particular disease is not an issue.
Instead, the question is whether the defendant violated Texas
environmental laws by endangering the public health and creating a
nuisance and, if so, the amount of civil penalties that should be
assessed.206 Instead of attempting to recover damages based on
injuries to a specific plaintiff, in a civil-penalty case the government is
seeking to deter dangerous conduct.
In addition, the Supreme Court has held that Texas
environmental laws should be interpreted “liberally to give effect to
205 Havner, 953 S.W.2d at 717; see also Bostic, 439 S.W.3d at 349.
206 TEX. WATER CODE § 7.101; TEX. WATER CODE § 7.102.
44
[their] remedial purpose[s].”207 Applying Havner‘s doubling-of-the-risk
requirement in environmental civil-penalty cases brought by the
government is contrary to the Supreme Court’s command, as well as the
statutory and regulatory language upon which Harris County litigated
its case.
This Court, therefore, should make clear that Havner‘s doubling-
of-the-risk requirement does not apply when the government is seeking
to show the dangers of pollution in environmental civil-penalty cases.
This Court should use this case to make clear to trial courts that while
Havner is extremely important when determining causation in toxic-
tort cases, it does not apply to environmental civil-penalty cases
brought by the government.
207 R.R. St. & Co. v. Pilgrim Enter., 166 S.W.3d 232, 238 (Tex. 2005).
45
3. Harris County provided evidence that International
Paper’s dumping of the dioxin-laced sludge in the
Pits endangered the public health and created a
nuisance.
The trial court erroneously excluded Harris County’s offered
testimony and documentary evidence showing the dangers of dioxin. 208
This evidence includes:
● The International Agency for Research on
Cancer—one of the primary scientific bodies for
determining which substances cause cancer in
humans—has determined that there is sufficient
evidence that 2,3,7,8-TCDD can cause cancer in
humans.209
● The United States Department of Health and
Human Services’ National Toxicology Program
has determined that 2,3,7,8-TCDD can cause cancer
in humans.210
● The World Health Organization has determined
that 2,3,7,8-TCDD can cause cancer in humans. 211
● Texas Department of State Health Services
issued a Public Health Assessment that specifically
addressed the Site.212 The Public Health
Assessment concluded that prolonged exposure to
74 RR 51-60; 62 CR 34775; 62 CR 34777; 62 CR 34793; OPX 3; OPX 7; OPX 11;
208
OPX 15; see pp. 13-20 above.
209 2 SCR ___ (Harris County’s Reply at Ex. C); OPX 7 at 40.
210 2 SCR ___ (Harris County’s Reply at Ex. C).
211 2 SCR ___ (Harris County’s Reply at Ex. D).
212 OPX 7 at 10.
46
contaminated sediments from the Site could
increase the risk of cancer.213 The Public Health
Assessment stated that “[d]ioxins have been
detected in sediments at the [Site] at levels that
would possibly cause unacceptably high risks for
cancer (greater than one out of 10,000 people
exposed).”214
● The EPA found that “[b]oth human and ecological
health is threatened by releases of hazardous
substances from the [Site].” 215
● The Texas Department of Health issued Fish and
Shellfish Consumption Advisories for the San
Jacinto River.216 The first advisory, which was
issued in 1990, warned of the dangers of eating
catfish and blue crabs because of the dioxin
contamination.217 The second advisory, which was
issued in 2001, warned of the dangers of eating any
fish caught from “the San Jacinto River downstream
of the U.S. Highway 90 bridge,” which includes the
area of the Pits.218
The trial court erred when it excluded the evidence based on
Havner‘s doubling-of-the-risk requirement because that requirement
does not apply in this government civil-penalty case.219
213 Id.
214 Id.
215 OPX 11 at 6.
216 74 RR 57; OPX 15.
217 OPX 15 at 3.
218 Id. at 2.
219 See § I(C)(2) above.
47
4. The trial court’s improper exclusion of the evidence
regarding the dangers of dioxin was reversible error.
A trial court’s rulings on the admissibility of evidence ordinarily
do not rise to the level of reversible error. But the Supreme Court has
made clear that a trial court’s improper exclusion of evidence is
reversible error if “the judgment turns on the particular evidence
excluded.”220 That is the situation here.
Harris County was entitled to the submission to the jury of the
issues on endangerment of public health and nuisance if there was
evidence supporting those claims.221 If this evidence had been
admitted, then there would clearly be evidence that the sludge
endangered the public and created a nuisance.222 So if this Court
determines that the evidence introduced—including the stipulation—
was insufficient to support submissions on those issues, then “the
judgment turns” on the exclusion of the evidence regarding dioxin’s
dangers.223
Alvarado, 897 S.W.2d at 754; see also Gulley v. Davis, 321 S.W.3d 213, 217 (Tex.
220
App.—Houston [1st Dist.] 2010, pet. denied).
221 Elbaor, 845 S.W.2d at 243.
222 See § I(C)(3) above.
223If this Court determines that the evidence was sufficient to support the
submission of those issues, then it will reverse on that basis and will not need to
48
Therefore, the trial court’s erroneous exclusion of the evidence
regarding dioxin’s dangers was reversible error.
D. The endangerment and nuisance issues are not
“functionally identical” to the submitted discharge
question.
International Paper has argued that the trial court did not have
to submit the public-endangerment and nuisance issues because those
issues allegedly involved the same factual determination as the issues
that the trial court did submit.224 International Paper is wrong. Harris
County’s requested issues on public endangerment and nuisance were
different than the issues that the trial court submitted, so the trial
court erred when it refused to submit Harris County’s requested public-
endangerment and nuisance issues.
A trial court does not have to submit an issue when the requested
issue is “functionally identical” to a submitted issue. 225 Texas Rule of
Civil Procedure 278 describes the exception as not requiring “other and
reach the issue of whether the trial court’s exclusion of the evidence was reversible
error. Even though this Court will not need to address whether the exclusion was
reversible error in that circumstance, it should still address the trial court’s
exclusion of that evidence because the evidence’s admissibility will be a major issue
on retrial and may affect not just the liability determinations, but also the amount
of penalties.
224 64 CR 35614-35617.
225 Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 665-66 (Tex. 1999).
49
various phases or different shades of the same question.” 226 This Court
has interpreted Rule 278’s exception as not requiring “additional issues
or instructions that are mere shades or variations of the issues already
submitted.”227
Rule 278’s exception does not apply here because Harris County’s
requested issue on public endangerment was not functionally identical
to issues that were submitted in the charge.
The jury was asked in Question One if International Paper:
[C]aused, suffered, allowed or permitted the discharge
of industrial waste containing dioxin into or adjacent to
any water in the state at any time from February 15,
1973, until March 30, 2008.228
The jury was asked in Question Four if International Paper:
[C]aused, suffered, allowed, or permitted the handling
or disposal of industrial solid waste containing dioxin
in such a manner as to cause the discharge or
imminent threat of discharge of industrial solid waste
containing dioxin into or adjacent to the water in the
State at any time from December 31, 1975, until March
30, 2008?229
226 TEX. R. CIV. P. 278.
227Avanti Sales Int’l, Inc. v. Pycosa Chem., Inc., No. 01-04-00983-CV, 2005 WL
2670740, at *3 (Tex. App.—Houston [1st Dist.] Oct. 20, 2005, no pet.).
228 63 CR 65177 (App. A) (emphasis added).
229 63 CR 35183 (App. A) (emphasis added).
50
Harris County requested that the jury also be asked if International
Paper:
[C]aused, suffered, allowed, or permitted the handling
or disposal of Industrial Solid Waste in such a manner
so as to cause … [t]he creation and maintenance of a
nuisance, or … [t]he endangerment of the public health
and welfare at any time from December 31, 1975, until
March 30, 2008? 230
The following table shows the differences between the liability
questions that the trial court submitted and the requested issues on
endangerment and nuisance that the trial court refused:
Submitted Question Requested Issue
Endangerment
Sub-Issue #1 #4 of Public Nuisance
Health
Must sludge be
No—sludge need not be
dangerous or a Dangerous Nuisance
dangerous or a nuisance
nuisance?
Is discharge, or
Discharge or No discharge or
imminent threat
Discharge imminent imminent threat of
of discharge,
threat discharge required
required?
This shows that the requested endangerment and nuisance issues are
not functionally equivalent to the issues the jury answered.
Under the Texas Administrative Code, these issues are separate
and distinct violations. The Texas Administrative Code prohibits
230 63 CR 35097 (App. E) (emphasis added).
51
causing, suffering, allowing, or permitting the handling or disposal of
industrial solid waste in such a manner so as to cause:
● The discharge or imminent threat of discharge of
industrial solid waste into or adjacent to the waters
in the state without a permit;
● The creation and maintenance of a nuisance; or
● The endangerment of the public health and
welfare.231
Therefore, under TCEQ rules the discharge of industrial solid waste
without a permit is separate from disposing of industrial solid waste in
a manner that endangers the public health and welfare or creates a
nuisance.
In submitted Questions One and Four, the issues were whether
the sludge left the Pits and entered the San Jacinto River, or whether
there was an imminent threat that would happen.232 The focus was on
the movement of the sludge—the “discharge”—into the River. There
was no requirement that the sludge had to be dangerous. It only had to
move, or be in danger of moving, into or adjacent to the River.
The endangerment-of-public-health issue that the trial court
refused to submit to the jury focused on the danger posed by the
231 30 TEX. ADMIN. CODE § 335.4.
232 63 CR 35177, 35183 (App. A); 30 TEX. ADMIN. CODE § 335.4(1).
52
sludge—not whether it was moving into the River. 233 The jury had to
consider whether International Paper’s disposal of the sludge
endangered the public health, which could be met regardless whether
the sludge was ever discharged into, or near, the River or if it stayed in
the Pits where it was dumped.234 The jury could have found
International Paper liable under the requested issue if the sludge as
dumped was dangerous, even if the jury did not find that the sludge
moved, or was in danger of moving, into the water.
For example, Harris County provided evidence that there is a
danger that hurricanes and floods could dislodge the sludge from the
Pits and cause it to enter the River, thus endangering the public
health.235 The submitted Question Four asked whether International
Paper’s disposal had caused an actual discharge or the “imminent
threat of discharge.”236 The jury could have believed Harris County’s
evidence that hurricanes and floods could move the sludge into the
River, but because hurricanes and floods are not common occurrences, it
233 63 CR 35097 (App. E).
234 Id.
235 66 RR 32-33.
63 CR 35183 (App. A). Submitted Question One required a discharge, so an
236
imminent threat of discharge would not result in liability under Question One. 63
CR 35177 (App. A).
53
could have found that the threat was not “imminent,” thereby resulting
in a “No” answer to submitted Question Four. 237 The requested public-
endangerment issue does not require that the danger be imminent, so a
real—but not imminent—threat like a hurricane or flood would result
in a “Yes” answer to the requested issue, but a “No” answer to the
submitted questions.
A nuisance is “a condition that amounts to an unreasonable
interference with a right common to the general public.” 238 The
nuisance issue could be met by, for example, the fact that the dioxin
contamination of the Pits curtails the ability to mine sand from the
riverbed in the area around the Site.239 The evidence is undisputed that
the Pits are contaminated with dioxin from International Paper’s
sludge.240 The evidence is also undisputed that portions of the dioxin-
contaminated Pits are now under the San Jacinto River. 241 And
International Paper’s own witnesses testified that dredging will release
237 66 RR 32-33.
238In re Premcor Ref., 233 S.W.3d at 907; Jamail, 970 S.W.2d at 676; RESTATEMENT
(SECOND) OF TORTS § 821B(1).
239 70 RR 73, 175-176.
240 68 RR 14; 70 RR 178; 71 RR 26.
241 PX 1005; 63 RR 107-108; 65 RR 163.
54
the dioxin into the River and that the dioxin contamination caused the
cancellation of dredging permits.242 The jury, therefore, could have
found that International Paper created a nuisance even if the jury did
not find that the sludge had moved, or was in danger or moving, into
the water as it sits.
The jury, therefore, could have found that International Paper’s
disposal of the sludge in the Pits endangered the public health or
created a nuisance even though it found that International Paper’s
disposal of the sludge did not cause the discharge, or imminent threat of
discharge, of the sludge into or adjacent to the water. That means
Harris County’s requested issues on public endangerment and nuisance
were not the “functional equivalent” of the submitted issues. So the
exception does not apply, which means that the refusal to submit the
requested issues was harmful error.
242 70 RR 173, 177-178.
55
II. The trial court erred in the jury instructions that it gave
regarding International Paper causing, suffering, allowing, or
permitting a discharge or imminent threat of discharge of waste.
The trial court did not err just by refusing to submit the public-
endangerment and nuisance issues. The trial court also erred in the
instructions that it gave. Specifically, the trial court erred when it
instructed the jury that International Paper no longer owned the sludge
as of 1966.243 This instruction was harmful error, so this Court should
reverse the judgment and remand for retrial.
A. The trial court erred when it instructed the jury that
International Paper no longer owned the sludge as of 1966.
International Paper does not dispute that it owned the sludge that
was generated at its paper mill.244 And International Paper does not
dispute that it arranged for the sludge that it generated at its paper
mill to be dumped in the Pits at the Site.245 International Paper does
not even dispute that the only waste ever dumped in the Pits was the
sludge from its paper mill.246
243 63 CR 35177 (App. A); 63 CR 35183 (App. A).
244 65 RR 34-37; 68 RR 14.
245 65 RR 34-37; 68 RR 14.
246 68 RR 14, 51; 68 RR 51; 70 RR 120.
56
Instead, International Paper claims that the title to its sludge
transferred from International Paper to some other entity, so it no
longer owned the sludge that was dumped at the Site. 247
International Paper does not identify any bill of sale or other
agreement transferring the ownership of its sludge to another entity,
and there is no such document in the record.248 Because there is no
contractual agreement transferring the ownership of the sludge from
International Paper to another entity, the only way the ownership could
be transferred is by operation of law.
International Paper claims that the ownership transferred by
operation of law in two separate ways:
● First, International Paper claims that, under the
law regarding the disposal of garbage, ownership of
the sludge passed to MIMC when MIMC picked it
up for disposal at the Pits. MIMC did not agree
with International Paper on this issue.249
● Second, International Paper claims that the sludge
became a fixture of the land after it was dumped in
the Pits, thereby converting from International
Paper’s personal property into real property owned
by Virgil McGinnes, the Site’s owner, even though
McGinnes was not a party to the International
247 See, e.g., 64 CR 35607-35614.
248 See, e.g., id.
249 56 CR 31696; 64 CR 35607-35609; see § II(A)(1) below.
57
Paper/MIMC agreement and there is no evidence
McGinnes intended to become the owner of
International Paper’s sludge.250
Because neither of International Paper’s theories are supported by the
law or the facts, it did not conclusively establish that its ownership of
the sludge transferred to another entity or person by operation of law.
The trial court, therefore, erred when it instructed the jury “that as of
1966, [International Paper] no longer owned the waste.” 251
Whether International Paper continued to own the sludge after it
was dumped in the Pits was a contested, critical issue on which the trial
court changed its mind.252 The trial court’s instruction that
International Paper no longer owned the waste as of 1966 was,
therefore, reversible error. 253
1. International Paper did not conclusively establish that
the ownership of its sludge passed to MIMC when
MIMC took the sludge to the Pits.
International Paper claims that a waste generator ceases to own
its waste once it is disposed.254 So—according to International Paper—
250 62 CR 34702; 64 CR 35609-35613; see § II(A)(2) below.
251 63 CR 35177 (App. A); 63 CR 35183 (App. A); see § II(A)(1)-(2) below.
252 See § II(A)(3) below.
253 Thota, 366 S.W.3d at 687; see § II(A)(3) below.
254 64 CR 35607-35609.
58
ownership of the sludge transferred from International Paper when
MIMC removed the sludge from the paper mill. 255
International Paper’s argument is based on a misunderstanding of
Texas law regarding disposal of waste. Under Texas law—absent an
agreement transferring ownership—the ownership of waste is not
transferred unless the waste owner has abandoned the waste. 256
Because there was no agreement transferring ownership of the sludge,
International Paper had to conclusively establish that it abandoned the
sludge.257
International Paper did not meet its burden to conclusively
establish that it abandoned the sludge, so it did not conclusively
establish that its ownership of the sludge was transferred to another
entity or person.
255 Id.
256Sharpe v. Turley, 191 S.W.3d 362, 367-68 (Tex. App.—Dallas 2006, pet. denied);
R.R. Comm’n of Tex. v. Waste Mgmt. of Tex., 880 S.W.2d 835, 843 (Tex. App.—
Austin 1994, no writ); see also Meyer Waste Sys., Inc. v. Indiana Dept. of State
Revenue, 741 N.E.2d 1, 5 (Ind. T.C. 2000) (“With respect to ownership, this Court
has held that ‘[a]t the point the garbage is abandoned, the generators of the garbage
lose their ownership rights.’”) (quoting Indiana Waste Sys. of Indiana, Inc. v.
Indiana Dept. of State Revenue, 633 N.E.2d 359, 367 (Ind. T.C. 1994)).
257See City of Keller v. Wilson, 168 S.W.3d 802, 815-17 (Tex. 2005) (standards for
conclusive evidence).
59
Under Texas law, International Paper did not abandon the sludge
by contracting for MIMC to pick it up and dispose of it at the Site.
Texas courts have held that property—including waste or garbage—is
abandoned when the owner leaves “the property free to be appropriated
by any other person.” 258 Under Texas law, “abandon” means to “give up
absolutely; to forsake entirely; to renounce utterly; to relinquish all
connection with or concern it; to desert.”259 Whether property has been
abandoned is “generally a fact question,” and “the facts must
affirmatively show an intent to abandon.”260
International Paper’s contract with MIMC shows that
International Paper retained control over the sludge and did not
abandon it:
● The contract specified that the sludge would be
disposed at “a tract of land acceptable to
[International Paper]”261
● The contract specified that the sludge would be
transported by barge. 262
258 Waste Mgmt., 880 S.W.2d at 843; see also Sharpe, 191 S.W.3d at 368.
259Waste Mgmt., 880 S.W.2d at 843 (quoting BLACK’S LAW DICTIONARY 2 (6th ed.
1990)); Russell v. Am. Real Estate Corp., 89 S.W.3d 204, 209 n.5 (Tex. App.—Corpus
Christi 2002, no pet.).
260 Russell, 89 S.W.3d at 209 n.5.
261 DX 1436 at 1.
60
● The contract required MIMC to have all required
permits and licenses and to comply with all laws,
rules, and regulations.263
● International Paper required MIMC to perform the
work “in a good and workmanlike manner.”264
● International Paper had the right to audit MIMC’s
records.265
● International Paper even withheld 15% of the
contract payment to make sure that MIMC paid for
all of its labor, material, and equipment costs.266
International Paper did not just have MIMC pick up the sludge in
its barges and dump the sludge in the Pits. Instead, International
Paper had MIMC return part of the water from the sludge slurry to its
paper mill.267 That is further evidence that International Paper
continued to exercise control over the sludge even after it was dumped
in the Pits.
International Paper’s involvement with the sludge continued after
an incident in December 1965 where rain washed away parts of the
levees surrounding the Pits, reducing the height of the levee in half at
262 Id.
263 Id. at 6; 68 RR 18.
264 DX 1436 at 6; 68 RR 18.
265 DX 1436 at 6.
266 Id. at 2.
267 70 RR 111, 119-120.
61
places.268 International Paper investigated that incident and discussed
it with MIMC.269 International Paper expressly stated that this
material—which had already been disposed—was “[International
Paper’s] waste sludge material” and cautioned about “the sensitive
nature of this entire operation and the need for special precaution in
connection with the disposal of this waste material.” 270
International Paper is not like the homeowner who leaves garbage
at the curb to be picked up, never to think about it again. Instead,
International Paper specified how the sludge would be transported and
disposed and was integrally involved in the entire operation regarding
its sludge, including overseeing the sludge after it was dumped in the
Pits.271
The control International Paper continued to exercise over its
sludge dumped in the Pits shows that there is at least a fact issue on
whether International Paper abandoned the sludge. International
Paper did not conclusively establish that title to the sludge transferred
268 PX. 16.
269 Id.
270 Id. at 1-2 (emphasis added).
271 Id. at 2.
62
from International Paper to MIMC, or any other entity. 272 The trial
court, therefore, erred when it instructed the jury that International
Paper ceased owning the sludge as of 1966.
2. International Paper did not conclusively establish that
the sludge became a fixture to the real property after
it was dumped in the Pits.
International Paper also claimed that it lost ownership of the
sludge after it was dumped in the Pits because the sludge supposedly
became a fixture, thus transforming from International Paper’s
personal property to the landowner’s real property.273
Under certain circumstances, personal property that has been
attached to real property can become what is called a “fixture.”274 If the
personal property becomes a fixture, it loses its character as personal
property and becomes part of the real property. 275 So the ownership of
272This Court should also consider MIMC’s position on this issue. International
Paper contends that MIMC became the owner of the sludge when it picked the
sludge up for disposal. MIMC, however, contended that it does not own—and never
has owned—the sludge. 56 CR 31696. MIMC’s argument is evidence that
International Paper did not transfer ownership of the sludge when it was disposed
of in the Pits, so International Paper did not conclusively establish that it
transferred ownership of the sludge when the sludge was picked up for disposal.
273 55 CR 31268-31270; 64 CR 35609-35613.
274 Lee v. Lee, 411 S.W.3d 95, 109 (Tex. App.—Houston [1st Dist.] 2013, no pet.).
275 Id.
63
the formerly personal property would then transfer to the owner of the
real property.
That is what International Paper claims happened here.276 It
asserts that the sludge became a fixture when dumped in the Pits,
thereby ceasing to be its personal property and, instead, becoming part
of the real property owned by the owner of the Pits. 277 International
Paper is wrong: Only personal property that is an “improvement” can
become a fixture.278 And International Paper’s dioxin-containing sludge
is not an improvement.
Because International Paper did not conclusively establish that
the sludge was an improvement, it did not conclusively establish that
the sludge became a fixture. International Paper, therefore, did not
conclusively establish that the sludge was converted from its personalty
to the Pit owner’s realty. The ownership of the sludge was a fact issue
for the jury, so the trial court erred when it instructed the jury that
International Paper ceased to own the sludge as of 1966.
276 55 CR 31268-31270; 64 CR 35609-35613.
277 55 CR 31268-31270; 64 CR 35609-35613.
278 See § II(A)(2)(a) below.
64
a. The sludge cannot be a fixture because it was
not an improvement.
Under Texas law, a fixture is a type of improvement. 279 Therefore,
if the sludge was not an improvement, it cannot be a fixture under
Texas law.
This Court has held that an improvement must increase the value
of the property.280 International Paper did not provide any evidence
that the sludge increased the market value of the Site. Instead, Harris
County provided evidence showing that the sludge actually decreased
the Site’s market value.281
56 CR 31749 (“Therefore, although all improvements are not necessarily fixtures,
279
any fixture … is considered an improvement.”) (quoting Reames v. Hawthorne-
Seving, Inc., 949 S.W.2d 758, 761 (Tex. App.—Dallas 1997, pet. denied)).
280 Dubin v. Carrier Corp., 731 S.W.2d 651, 653 (Tex. App.—Houston [1st Dist.]
1987, writ dism’d), disapproved on other grounds, Sonnier v. Chisholm-Ryder Co.,
909 S.W.2d 475, 480-82 (Tex. 1995) (an improvement “includes everything that
permanently enhances the value of the premises”); Dow Chem. Co. v. Abutahoun,
395 S.W.3d 335, 345-46 (Tex. App.—Dallas 2013, no pet.) (“The customary meaning
of ‘improvement’ is a permanent addition that increases the value of the property
and makes it more useful”) (internal quotation omitted); Brown & Root, Inc. v.
Shelton, No. 12-01-00259-CV, 2003 WL 21771917, at *4 (Tex. App.—Tyler July 31,
2003, no pet.) (quoting Trust Co. Bank v. U.S. Gypsum Co., 950 F.2d 1144, 1152 (5th
Cir. 1992)) (an “improvement” is “a permanent addition that increases the value of
the property and makes it more useful”).
281 PX 143 at 4.
65
In its 1968 board of directors minutes, MIMC addressed the
market value of the Site after the dumping was complete. 282 MIMC’s
board minutes recognized that the dumping of the sludge at the Site
had made the land “worthless.”283 MIMC’s board minutes state that
“the property was completely filled with waste materials,” and that
“[d]ue to its physical condition it was also regarded that the land was
worthless in that it had no present sales value” 284 MIMC, therefore,
wrote down the value of the land on its books “from $50,000 cost to the
nominal sum of $1.”285
Harris County, therefore, provided evidence showing that
dumping the sludge at the Site actually decreased the Site’s market
value, which means that the sludge was not an improvement. 286
Because the sludge was not an improvement, by definition it could not
be a fixture.287 The sludge, therefore, is still International Paper’s
282 Id.
283 Id.
284 Id.
285 Id.
286 Dubin, 731 S.W.2d at 653.
287 56 CR 31749; Reames, 949 S.W.2d at 761.
66
personal property and has not become real property belonging to the
owner of the real property where the Site is located.
b. There was no intent to incorporate the sludge
into the soil, so it is not a fixture.
The sludge was not a fixture even if this Court were to hold that it
was an improvement capable of becoming a fixture. The Supreme Court
has established a three-part test to determine “whether personalty has
become permanently attached to the realty” such that it is a fixture:
1. The mode and sufficiency of annexation, either real
or constructive;
2. The adaptation of the personalty to the use or the
purpose of the realty; and
3. The intent of the owner.288
The evidence shows that International Paper did not conclusively
establish that the sludge—assuming it could even qualify as an
improvement capable of becoming a fixture—met the test to become a
fixture.
The Supreme Court has held that the third factor—the intent of
the owner—is “critical” and that intent is “preeminent and the other
288 Sonnier v. Chisholm-Ryder Co., 909 S.W.2d 475, 479 (Tex. 1995).
67
two are evidence of intent.”289 International Paper failed to provide any
evidence of intent to make the sludge a fixture.
International Paper did not provide any evidence showing its
intention that the sludge become part of the land. And International
Paper certainly did not provide any evidence from the owner of the land
showing the owner’s intention that the sludge become part of the land.
The trial court ruled that Virgil McGinnes, one of MIMC’s owners—not
MIMC—actually owned the land where the Site was located.290 There
was absolutely no evidence showing that McGinnes intended the sludge
to become part of his land. The record contains no evidence regarding
the terms any agreement between MIMC and McGinnes that would
have allowed MIMC to incorporate the sludge into the land in a way
that would transfer ownership of the sludge to McGinnes.
Texas courts have described personalty being annexed to realty as
becoming “part of the soil.”291 International Paper’s intent was never
for the sludge to become “part of the soil.” Instead, International
289 Id.
290 62 CR 34702.
291 See, e.g., Cox v. Rhodes, 233 S.W.2d 924, 928 (Tex. Civ. App.—El Paso 1950, writ
ref’d n.r.e.); Moore v. Carey Bros. Oil Co., 269 S.W. 75, 76 (Tex. Comm’n App. 1925);
Westchester Fire Inc. Co. v. Roan, 215 S.W.985, 987 (Tex. Civ. App.—Fort Worth
1919, writ ref’d).
68
Paper’s and MIMC’s intent was for the sludge to remain separate from
the soil in what they thought was an impermeable layer of clay. 292 Even
though it turned out that the Pits were not impermeable, the intention
of International Paper and MIMC was to keep the sludge separate from
the soil. 293
In addition, the sludge was not adapted to a specific use of the
land. The sludge dumped in the Pits along the San Jacinto River does
not contribute to the use of the land. There was evidence showing that
the area around the Site has been used as a fishing spot and for mining
sand.294 The dioxin-contaminated sludge is not adapted to using the
Site for fishing, mining sand, or dredging.
International Paper, therefore, did not conclusively establish that
the sludge—assuming it could even be considered an improvement—
became a fixture, thus becoming part of the Site’s realty.
292 64 RR 53; DX 30.
293 63 RR 121-122, 127-130, 134.
294 64 RR 192-193; 70 RR 169-174, 195-196; PX 1036-A.
69
c. International Paper failed to conclusively
establish that removing the sludge would
materially damage the Site.
This Court has also held that personal property does not become a
fixture—thereby converting to real property—unless the “personal
property cannot be removed without materially damaging the
property.” 295
International Paper claimed that removing the sludge from the
Site would materially damage the property.296 But removing the sludge
from the Site would not materially damage the property; rather, it
would improve the property and cause its value to increase.
This Court has held that the test for whether removing an item
would materially damage the property is whether the removal would
devalue the property.297 International Paper did not conclusively
establish that removing the sludge would devalue the Site’s market
value. In fact, it provided no evidence on that point. Harris County
Melendez v. State, 902 S.W. 2d, 132, 137 (Tex. App.—Houston [1st Dist.] 1995, no
295
writ).
296 64 CR 35610-35611.
297Houston Bldg Serv., Inc. v. Am. Gen. Fire and Cas. Co., 799 S.W.2d 308, 311
(Tex. App.—Houston [1st Dist.] 1990, writ denied) (“The removal of the frames
would cause material damage to the building. We acknowledge that doors could be
removed without material structural damage to the rest of the structure. The
removal of doors, however, would certainly devalue the building, causing material
damage to the rest of the building.”).
70
provided evidence showing that International Paper’s dumping of the
sludge at the Site lowered the Site’s market value.298 So removing the
sludge would increase—not decrease—the Site’s market value.299
3. The trial court’s erroneous instruction was reversible
error because it related to a contested, critical issue.
An erroneous jury instruction is harmful error—and, therefore,
reversible error—if it probably caused the rendition of an improper
verdict.300 The Supreme Court has held that “[c]harge error is generally
considered harmful if it relates to a contested, critical issue.”301
The issue of whether International Paper continued to own the
sludge after it was dumped in the Pits was a contested and critical issue
in the case. International Paper’s position was that it could not have
caused, suffered, allowed, or permitted dioxin from the sludge to seep
into the water because it had no ownership interest in the sludge after
it was dumped in the Pits.302 So the issue of whether International
298 PX 143 at 4; see § II(A)(2)(a) above.
299 PX 143 at 4; see § II(A)(2)(a) above.
300TEX. R. APP. P. 44.1(a)(1); Columbia Rio Grande Healthcare, LP v. Hawley, 284
S.W.3d 851, 856 (Tex. 2009).
301 Thota, 366 S.W.3d at 687.
302 36 CR 24674-21680.
71
Paper continued to own the sludge after dumping was a critical and
contested issue.
The importance of the ownership issue is shown by the fact that
International Paper’s counsel focused on the issue in both opening
statement and closing argument.303 In opening statement,
International Paper’s counsel told the jury that the evidence would
show International Paper ceased owning the sludge after dumping. 304
In closing argument, International Paper’s counsel told the jury that
International Paper could not be liable because it ceased owning the
sludge after it was dumped in the Pits.305 International Paper’s counsel
specifically read the jury the trial court instruction that “as of 1966,
[International Paper] no longer owned the waste.” 306
The trial court’s non-ownership instruction was even more
harmful given the inconsistent way that it addressed the ownership
issue. The trial court denied International Paper’s summary-judgment
motion based on its claim that it no longer owned the sludge, ruling
303 62 RR 70-71; 77 RR 52, 60.
304 62 RR 70-71.
305 77 RR 52, 60.
306 77 RR 60.
72
that the issue of International Paper’s continued ownership was a fact
issue.307 Harris County, therefore, tried the case based on that
understanding. Harris County’s counsel told the jury in opening
statement that International Paper “continued to own the sludge after
delivering it to MIMC,” and International Paper maintained its position
that it no longer owned the sludge.308 The trial court undercut Harris
County’s credibility with the jury when it—erroneously—instructed the
jury that International Paper ceased owning the sludge in 1966.309
That makes the instruction even more harmful than it would have been
had the trial court consistently held that International Paper ceased
owning the sludge after it was dumped in the Pits.
The trial court erred when it instructed the jury that
International Paper ceased owning the sludge in 1966.310 The
erroneous instruction is harmful error—and, therefore, reversible
error—because it “relate[d] to a contested, critical issue.” 311 This Court,
therefore, should reverse the judgment and remand for retrial because
307 62 CR 34781; 62 CR 34784; 57 RR 123; 59 RR 8-10.
308 62 RR 41; 62 RR 70-71.
309 63 CR 35177, 35183 (App. A).
310 See § II(A)(1)-(2) above.
311 Thota, 366 S.W.3d at 687.
73
of the trial court’s erroneous instruction regarding ownership of the
sludge.
B. The trial court erred when it instructed the jury that
generating waste and contracting for disposal is not
sufficient to establish liability.
The trial court also erred when it instructed the jury that a “the
mere fact that [International Paper] generated the waste and
contracted with an independent waste disposal company for its disposal
is not, by itself, sufficient to establish that [International Paper] is
liable for any discharge.” 312 In the interest of judicial economy, Harris
County adopts by reference the State’s brief, which addresses this
issue.313
PRAYER
Harris County prays that this Court reverse the trial court’s
judgment and remand this case for retrial. Harris County respectfully
requests that this Court make clear that evidence regarding the
dangers of dioxin is admissible in the retrial and that Havner‘s rule
regarding the doubling of the risk does not apply because this is an
312 63 CR 35177, 35183 (App. A).
313 TEX. R. APP. P. 9.7.
74
environmental civil-penalty case brought by the government, not a
toxic-tort case.
Respectfully submitted,
/s/ Rock W.A. Owens
Rock W.A. Owens Debra Tsuchiyama Baker
Texas Bar No. 15382100 Texas Bar No. 15089600
Vince Ryan Earnest W. Wotring
Harris County Attorney Texas Bar No. 22012400
Texas Bar No. 99999939 John Muir
Terence L. O’Rourke Texas Bar No. 14630477
Special Asst. Harris County Attorney David George
Texas Bar No. 15311000 Texas Bar No. 00793212
OFFICE OF HARRIS COUNTY ATTORNEY BAKER•WOTRING LLP
VINCE RYAN 700 JPMorgan Chase Tower
1019 Congress, Room 1547 600 Travis Street
Houston, Texas 77002 Houston, Texas 77002
Telephone: (713) 755-5908 Telephone: (713) 980-1700
Fax: (713) 437-4211 Fax: (713) 980-1701
rock.owens@cao.hctx.net dbaker@bakerwotring.com
terence.o’rourke@cao.hctx.net ewotring@bakerwotring.com
jmuir@bakerwotring.com
dgeorge@bakerwotring.com
Counsel for Appellant Harris County, Texas
November 13, 2015
75
CERTIFICATE OF SERVICE
I certify that on November 13, 2015, I served a copy of the
foregoing document upon the following counsel of record via electronic
filing or certified mail:
Allyson N. Ho Mary E. Smith
MORGAN, LEWIS & BOCKIUS LLP Assistant Attorney General
1000 Louisiana Street, Suite 4000 OFFICE OF THE ATTORNEY
Houston, Texas 77002 GENERAL OF TEXAS
ENVIRONMENTAL PROTECTION
Counsel for Defendant DIVISION
International Paper Co. P.O. Box 12548, Capitol Station
Austin, Texas 78711
Counsel for Necessary and
Indispensable Party
The State of Texas,
acting by and through
Texas Commission on
Environmental Quality
/s/ David George
David George
CERTIFICATE OF COMPLIANCE
This brief contains 14,726 words, excluding the caption, signature
blocks, and certificates. This motion was prepared using Microsoft
Word 2016 in 14 point (12 point in footnotes) Century Schoolbook (Arial
headings and table of contents) font.
/s/ David George
David George
76
APPENDIX
No. 201 1-76724
Harris County, Texas, et al, Plamtig § IN THE DISTRICT COURT OF
v § HARRIS COUNTY, TEXAS
International Paper Company, ei al, §
Defendants § 295th JUDICIAL DISTR]CT
CHARGE OF THE COURT
Members of the Jury
After the closmg arguments, you will go to the jury room to decide the case,
answer the questions that are attached, and reach a verdict You may discuss the case with
other jurors only when you are all together m the 3ury room
Remember my previous instruchons Do not discuss the case with anyone else,
either m person or by any other means Do not do any independent mvestigation about
the case or conduct any research Do not look up any words in dictionaries or on the
Internet Do not post mformation about the case on the Imernet Do not share any special
knowledge or expenences with the other Jurors Do not use your phone or any other
electrome device durmg your debberations for any reason I will give you a number
where others may contact you in case of an emergency
Any notes you have taken are for your own personal use You may take your notes
back mto the jury room and consult them dunng deliberations, but do not show or read
your notes to your fellow jurors durmg your dehberations Your notes are not evidence
Each of you should rely on your mdependent recollection of the evidence and not be
mfluenced by the fact that anothei juror has or has not taken notes
You must leave your notes with the bailiff when you are not debberating The
balhff will give your notes to me promptly after collecting them from you I will make
sure your notes are kept m a safe, secure location and not disclosed to anyone. After you
complete your deliberations, the balb ff will collect your notes When you are released
f rori jury duty, the bailiff will promptly destroy your notes so that nobody can read what
you wrote
I lere are the mstructions for answermg the questions
i Do not let bias, prejudice, or syrnpathy play any part m your decision
FILED
Chris Daniel
District Clerk
Time:
NOV 1 3
ѯL108
Warrie Ôounty,
By
es1¯d
Base your answers only on the evidence admitted in court and on the law that is
2
m these instructions and questions Do not consider or discuss any evidence that was not
admitted m the courtroom
3 You are to make up your own mmds about the facts You are the sole judges of
the credibility of the witnesses and the weight to give their testimony But on matters of
law. you must follow all of my mstructions
4 lf my mstructions use a word m a way that is different from its ordinary
meamng, use the meamng l give you. which will be a proper legal definition
5. All the questions and answers are important No one should say that any
question or answer is not important
'·yes°'
6 Answer or 'no lo all questions unless you are told otherwise A "yes"
answer must be based on a preponderance of the evidence unless you are told otherwise
Whenever a question requires an answer other than "yes" or 'no," your answer must be
based en a preponderance of the evidence unless you sæ told otherwise The term
"preponderance of the evidence" means the greater weight of credible evidence presented
m this case If you do not find that a preponderance of the evidence supports a "yes''
"
answer. then answer "no A preponderance of the evidence is not measured by the
number of witnesses or by the number of documents admitted m evidence For a fact to
be proved by a preponderance of the evidence, you must find that the fact is more likely
true than not true
7 Do not decide who you ihmk should wm before you answer the questions and
then just answer the questions to match your decision Answer each question carefully
without considermg who will wm Do not discuss or consider the effect your answers will
have
8 Do not answer questions by drawmg straws or by any method of chance
9 Some questions might ask you for dollar amount Do not agree m advance to
a
decide on a dollar amount by addmg up each juror s amount and then figurmg the average
10Do not trade your answers For example, do not say, "I will answer this
'°
question your way if you answer another question my way
Unless otherwise instructed. the answers to the questions must be based on the
I 1
decision of at Icast 10 of the 12 Jurors The same 10 jurors must agree on every answer.
Do not agree to be bound by a vote of anythmg less than 10 Jurors, even if it would be a
majority
Ashave said before. If you do not follow these mstructions, you will be guilty of
I
juror misconduct, and I might have to order a new trial and start this process over agam
This would waste your time and the parties' money, and would require the taxpayers of
2
35173
this county to pay for another trial lf a Juror breaks any of these rules, tell that person to
stop and report tt to me immediately
A fact may estabbshed by direct evidence or by circumstantial evidence or both
be
A fact as established by direct evidence when proved by documentary evidence or by
witnesses who saw the act done or heard the words spoken A fact is established by
cucumstantial evidence when it may be fairly and reasonably mferred from other facts
proved
3
35174
General Definitions and Instructions
1 The "Site" means the waste sue at the northwest mtersection of Interstate
10 and the San Jaemto River m Harris County. Texas A photograph of the Site m 1966
is shown on the attached Exhibit "A" hereto
2 "Harris County" means Plamtiff Hams County, Texas
3 "InternationalPaper" means Defendant International Paper Co
4 "Champion Paper" means Champion Intemational Corp ; US Plywood-
Champion Papers, Inc Champion Papers, Inc , The Champion Paper and Fibre
,
Company, and The Champion Coated Paper Company, the predecessors by merger to
Defendant International Paper Co
5 The "Defendants" means Defendants International Paper and its
predecessor by merger Champion Paper
6 "MIMC" means McGmnes Industrial Mamtenance Corporation.
7 "Industnal Waste" means waterborne liquid, gaseous, or solid substances
that result from any process of mdustry. manufacturing. trade, or busmess
8 "Water m the State" means groundwater, percolatmg or otherwise, lakes,
bays. ponds, impoundmg reservoirs, sprmgs, rivers, streams. creeks, estuaries, wetlands.
marshes, mlets. canals. the Gulf of Mexico, inside the territorial hmits of the state, and all
other bodies of surface water. natural or artificial, mland or coastal. fresh or salt,
navigable or nonnavigable, and meludmg the beds and banks of all watercourses and
bodies of surface water. that are wholly or partially mside or bordermg the state or mside
the.jurisdiction of the state
9 -Industrial Sohd Waste" means Solid Waste resultmg from or mcidental to
any process of mdustry or manufacturmg, or mimng or agricultural operation
10 "Solid waste" meludes discarded material meludmg sohd, liquid. or
semisolid material tesultmg from mdustrial operations
11 "Dioxm" means 2, 3, 7. 8-Tetrachlorodibenzo-p-dioxm
12 "Hazardous Substance" means any substance designated as such by the
admmistratoi of the Umted States Environmental ProtectlOn Agency Effective July 3,
1985, the United States Environmental Protection Agency designated Dioxin as a
Hazardous Substance
13 Champion Paper merged into International Paper on December 31, 2000
4
35175
14 Any recovery will be determined by the court when it applies the law to
your answers time of judgment
at the
15 The parties have always agreed that neither Champion Paper nor
International Paper has ever owned the property on which the Site is located
5
35176
Question One
Do you find that any of the followmg Defendants caused, suffered, allowed, or permitted
the discharge of mdustrial waste contammg dioxm into or adjacent to any water m the
state at any time from February 15. 1973, until March 30, 20089
In this question, "discharge" meludes 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
"Cause, suffer. allow. or permit" shall be defined using the common, normal, and
everyday meanmgs for each word m the phrase A person "causes, suffers, allows,
permits¯¯
or an event when that person had the power to prevent an event at the
time of the event, but failed to do so
You are instructed that the mere fact that Champion Paper generated the waste and
contiacted with an mdependent waste disposal company for its disposal is not, by
itself, suffleient to estabbsh that Champion Paper is liable for any discharge You
are further mstructed that as of 1966, Champion Paper no longer owned the waste
and no longer had a contract for disposal at the Site Champion Paper contmued to
have a busmess relationship with MIMC up to 1973
Answer -Yes" or "No" for each Defendant
a Champion Paper (before December 31, 2000)
b International Paper (on or after December 31. 2000)
6
35177
If you answered "Yes" to Question One for one or more of the Defendants, then answer
the following question as to those Defendant(s) Otherwise, do not answer the followmg
question
Question Two
For each Defendant for whom you answered "Yes" m Question One, identify each
violation date or range ofdates on which consecutive daily violations, if any, by such
Defendant occurred
Answer with the dates, or date ranges, usmg the month, day, and year
a Champion Paper
You are mstructed that you should write down each date of a violation (or date range of
consecutive daily violations) by Champion Paper, for any violation(s) durmg the
followmg time periods
(1) Dates from February 15, 1973 until August 31, 1985
(2) Dates from September 1, 1985 until August 31, 1997
7
35178
(3)Dates from September 1, 1997 until December 30, 2000
b International Paper
You are mstructed that you should write down each date of a violation (or date range of
consecutive daily violations) by International Paper, for any violation(s) durmg the
followmg time period
(1) Dates from December 31, 2000 until March 30, 2008
8
35179
If you answered "Yes" to Question One for one or more of the Defendants, then answer
the followmg question as to those Defendant(s) Olherwise, do not answer the following
question
Question Three
What amount of money should be assessed agamst each Defendant as a penalty for each
day you found a violation m response to Question Two?
Your answer should fall in the followmg ranges, dependmg on the date of the violation(s)
Date Range Penalty Range
February 15, 1973 - August 31, 1985 Mmimum per day $50
Maximum per day $1,000
September 1, 1985 - August 31, 1997 Mimmum per day $50
Maximum per day $10,000
September 1. 1997 - March 30, 2008 Mimmum per day $50
Maximum per day $25,000
For each of the dates, if any, you found that a Defendant committed a violation m
response to Question Two. do the following two thmgs (i) re-enter those date(s) or date
range(s) m the applicable table below, and (n) enter the proper penalty per day for each of
those violations You may impose different penalties for mdividual day(s) or for day(s)
within a date range
a Champion Paper
(1) Dates from February 15, 1973 until August 31, 1985
(Penally Amounts must be withm the range of SJ0 -
SI,000 per day of
wo/anon)
Date or Date Range Penalty Amount Per Day
(2) Dates from September 1, 1985 until August 31, 1997
9
35180
(Penally Amounts must be within the range of S30 - 310,000 per day of
wolation)
Date or Date Range Penalty Amount Per Day
(3) Dates from September 1, 1997 until December 30, 2000
(Penalty Amounts must be within the range of $50 -
$23,000 per day of
violation)
Date or Date Range Penalty Amount Per Day
b International Paper
(1) Dates from December 31, 2000 until March 30, 2003
(Penally Amounts must be within the range of $50 - 325,000 per day of
wolation)
Date or Date Range Penalty Amount Per Day
10
35181
11
35182
Question Four
Do you fmd that any of the followmg Defendants caused, suffered, allowed. or permitted
the handhng or disposal of mdustnal sohd waste contaimng dioxm m such a manner so as
to cause the discharge or immment threat of discharge of mdustrial sobd waste containmg
dioxm mto or adjacent to the water m the State at any time from December 31, 1975, until
March 30, 20087
"Disposal" means the discharge, deposit, mjeCflon, dumpmg, spuhng, leakmg, or
placmg of sohd waste or hazardous waste (whether contamerized or
any
uncontamenzed) mto or on any land or water so that such solid waste or hazardous
waste or any constituent thereof may enter the environment or be discharged mto
any waters
question, "discharge" means accidental or mtentional spillmg, leakmg,
In this
pumpmg. pout mg, emittmg, emptymg. or dumpmg of waste mto or on any land or
water
"Cause, suffer, allow, or permit" shall be defined usmg the common, normal, and
everyday meanmgs for each word m the phrase A person "causes, suffers, allows,
or permits" an event when that person had the power to prevent an event at the
time of the event, but failed to do so
You ale mstructed that the mere fact that Champion Paper generated the waste and
contracted with an mdependent waste disposal company for its disposal is not, by
itself, sufficient to estabbsh that Champion Paper is hable for any discharge You
are further mstructed that as of 1966, Champion Paper no longer owned the waste
and no longer had a contract for disposal at the Site Champion Paper contmued to
have a busmess relationship with MIMC up to 1973
Answer "Yes" or "No" for each Defendant
a Champion Paper (before December 31, 2000).
b International Paper (on or after December 31, 2000)
12
35183
ff you answered "Yes" to Question Four for one or more of the Defendants, then answer
the followmg question as to those Defendant(s) Otherwise, do not answer the following
question
Question Five
For each Defendant for whom you answered "Yes" in Question Four, identify each
violation date or range of dates on which consecutive daily violations, if any, by such
Defendant occurred
Answer with the dates, or date ranges, usmg the month, day, and year
a Champion Paper
You are mstructed that you should write down each date of a violation (or date range of
consecutive daily violations) by Champion Paper, for any violation(s) during the
followmg time periods
(1) Dates from December 31. 1975 until August 31, 1981
(2)Dates from September 1, 1981 until August 31, 1985
13
35184
(3) Dates from September 1, 1985 until August 31, 1997
(4) Dates from September 1, 1997 until December 30, 2000
b [nternational Paper
You are mstructed that you should write down each date of a violation (or date range of
consecutive daily violations) by International Paper, for any violation(s) during the
following time period
(1) Dates from December 31, 2000 until March 30, 2008
l4
35185
lf you answered "Yes" to Question Four for one or more of the Defendants, then answer
the folowmg question as to those Defendant(s) Otherwise, do not answer the followmg
question
Question Six
What amount of money should be assessed agamst each Defendant as a penalty for each
day you found a violation m response to Question Five?
Your answer should fall in the followmg ranges. dependmg on the date of the violation(s)
Date Range Penalty Range
December 31, 1975 August 31. -
1981 Mimmum per day $50
Maximum per day $1.000
September 1, 1981 - August 31, 1985 Mimmum per day $50
Maximum per day $2,000
September 1. 1985 - August 31, 1997 Mimmum per day $100
Maximum per day $25,000
September 1, 1997 - March 30, 2008 Mmimum per day $50
Maximum per day $25,000
For each of the dates, if any, you found that a Defendant committed a violation m
lesponse to Question Five, do the followmg two thmgs (i) re-enter those date(s) or date
range(s) m the apphcable table below, and (11) enter the proper penalty per day for each of
those violations You may impose different penalties for mdividual day(s) or for day(s)
withm a date range
a Champion Paper
(1) Dates from December 3], 1975 until August 31, 1981
(Penally Amounts must be withm the lange of £50 -
£1,000 per day of
violation)
Date or Date Range Penalty Amount Per Day
15
35186
(2) Dates from September 1, 1981 until August 31, 1985
(Penalty Amounts must be withm the range of $50 -
$2,000 per day of
violanon)
Date or Date Range Penalty Amount Per Day
(3) Dates from September 1, 1985 until August 31, 1997
(Penally Amounts must be within the range of £100 -
323,000 per day of
violation)
Date or Date Range Penalty Amount Per Day
(4) Dates from September 1, 1997 until December 30, 2000
(Penalty Amounts must be withm the range of S30 -
S25,000 per day of
violanon)
Date or Date Range Penalty Amount Per Day
16
35187
b lnternational Paper
(1) Dates from December 31, 2000 until March 30, 2003
(Penalty Amounts must be withm the ; ange of 350 -
S25,000 per day of
wolation)
Date or Date Range Penalty Amount Per Day
17
35188
If you answered "Yes" to Questions One and/or Four for one or more of the Defendants.
then answer the followmgquestion Otherwise, do not answer the followmg question
Question Seven
What is the reasonable fee for the services of the Connelly Baker Wotrmg LLP
Law Firm representmg Hams County in brmgmg this civil-penalty case, stated m dollars
and cents?
Factors to consider in determming a reasonable fee melude-
1 The time and labor required, the novelty and difficulty of the
questions mvolved. and the skill required to perform the legal
services properly
2 The likehhood that the acceptance of the particular employment
will preclude other employment by the lawyer
3 The fee customarily charged m the locality for similar legal services
4 The amount mvolved and the results obtamed
5 The time bmitations imposed by the client or by the circumstances
6 The nature and length of the professiorial relationship with the
cliem
7 The experience, reputation. and abilay of the lawyer or lawyers
performmg the services
8 Whether the fee is fixed or contmgent on results obtamed or
uncertamty of collection before the legal services have been
rendered
Answer with an amount m dollars and cents for each of the followmg
a For representation m the trial court
Answer
b For representation through appeal to the court of appeals
Answer
c For representation at the petition for review stage m the Supreme Court of Texas
18
35189
Answer
d For representation at the merits briefing stage m the Supreme Court of Texas
Answer
e For,representation through oral argument and the completion of proceedmgs in the
Supreme Court of Texas
Answer
19
35190
If you answered "Yes" to Questions One and/oi Four for one or more of the Defendants,
then answer the followmgquestion as to those Defendant(s) Otherwise, do not answer the
following question
Question Eight
Were any of the violations you found m Questions One and/or Four caused solely
by an act of God?
An occurrence is caused by an act of God if it is caused directly and exclusively by
the violence of nature, without human intervention or cause, and could not have
been prevented by reasonable foresight or care An occurrence is not caused solely
by an act of God if it could be avoided by the exercise of due care, foresight, or
proper plannmg, mamtenance, or operation
Answer "Yes" or No' for each Defendant
a Champion Paper (before December 31, 2000)
b International Paper (on or after December 31, 2000)
20
35191
If you answered "Yes" to Question Eight for one or more of the Defendants, then answer
the following question as to those Defendant(s) Otherwise, do not answer the following
question
Question Nine
Identify by date, or range of
dates, when the violations that you found in Questions One
and/or Four were caused solely by an act of God7
Answer with a dates, or range of dates, using the month, day, and year for each Defendant
you answered
"Yes, to m response to Question Eight
a Champion Paper (before December 31, 2000)
b International Paper (on or after December 31, 2000)
21
35192
If you answered
"Yes, to Question Four for one or more of the Defendants, then answer
the followmg question as to those Defendant(s) Otherwise, do not answer the following
question
Question Ten
On any day 1, 1997, were any of the Defendants hsted below also
after September
a person responsible for sohd waste? Answer only for the Defendants that you determmed
committed violations m Question Four
How you decide this question should not influence your consideration about how
you answer Questions One through Six.
A person is responsible for solid waste if the person
(1) is any owner or operator of a sohd waste facihty,
(2) owned or operated a solid waste facility at the time of processmg,
storage, or disposal of any solid waste,
(3) by contract, agreement. or otherwise, arranged to process, store, or
dispose of, or arranged with a transporter for transport to process,
store, or dispose of, solid waste owned or possessed by the person, by
any other person or entity at
(A) the sohd waste facility owned or operated by another
person or entity that contams the solid waste, or
(B) the site to which the sohd waste was transported that
contams
the solid waste, or
(4) accepts or accepted any solid waste for transport to a sohd waste
facihty or site selected by the person
Answer "Yes" or "No= for each Defendant listed below, if you answered "Yes" to
Question Four for that Defendant
a Champion Paper (before December 31, 2000)
b International Paper (on or after December 31, 2000)
35193
If you answered "Yes" to Question Ten for one or more of the Defendants, then answer
the followmg question as to those Defendant(s) Otherwise, do not answer the followmg
question
Question Eleven
Were any of the violations you found m Question Four caused solely by acts or
omissions of a thud person?
A violation is caused solely by an act or omission of a third person if the
Defendant
(1) exercised due care concermng the sohd waste, considering the
characteristics of the sohd waste, in light of all relevant facts and
circumstances, and
(2) took precautions agamst foreseeable acts or omissions of the third person
and the consequences that could foreseeably result from those acts or
omissions
A "third person" does not include
(1) employees or agents of the Defendant for which you are answermg this
question, or,
(2) those who have a direct or indirect contractual relationship with the
Defendant for which you are answermg this question
Answer "Yes" or "No" for each Defendant hsted below
a Champion Paper (before December 31, 2000)
b International Paper (on or after December 31, 2000)
23
35194
If you answered "Yes" to Question Eleven for of the Defendants, then answer
one or more
the followmg question as to those Defendant(s) Otherwise, do not answer the followmg
question
Question Twelve
On which were the violations that formed the basis
dates for your answer to
Question Four caused solely by acts or omissions of a third person?
For each of the followmg Defendants, write the date(s) or range(s) of consecutive
dates on which the alleged violation(s) were caused solely by acts or omissions of a third
person
a Champion Paper I
(1) Dates from September 1, 1997 until December 30, 2000
b International Paper
(1) Dates from December 31, 2000 until March 30, 2008
24
35195
Presiding Juror:
1 When you go mto the ury room to answer the questions, the first thing you will
need to do is choose a presiding juror
2 The presidmg juror has these duties
a have the complete charge read aloud if it will be helpful to your
dehberations,
b preside over your debbetations, meamng manage the discussions, and see
that you follow these mstructions,
c give written questions or comments to the baihff who will give them to the
Judge.
d write down the answers you agree on,
e get the signatures for the verdict certificate, and
f notify the balbff that you have reached a verdict
Do you understand the duties of the presidmg juror? If you do not, please tell me
DOW
Instructions for Signing the Verdict Certificate:
I Unless otherwise mstructed, you may answer the questions on a vote of 10
jurors The same 10 jurors must agree on every answer in the charge This means you
may not have one group of 10 Jurors agree on one answer and a different group of 10
jurors agree on another answer
2 If 10)urors agree on every answer, those 10 Jurors sign the verdict
lf 11 jurors agree on every answer, those 11 jurors sign the verdict
Ïf all of you agree on every answer, you are unammous and only the presidmg
12
juror signs the verdict
3 All jurors should debberate on every queston You may end up with all 12 of
you agreemg on some answers, while only 10 or 11 of you agree on other answers But
when you sign the verdict, only those 10 who agree on every answer will sign the verdict
Do you understand these mstrucnons7 lf you do not, please tell me now
Judge Presidmg
25
35196
Verdict Certificate
Check one
Our verdict is unanimous All 12 of us have agreed to each and every answer The
presidmg luror has signed the certificate for all 12 ofus
Signature of Presidmg Juror Prmted Name of Presidmg Juror
Our verdict is not unammous Eleven of us have agreed to each and every answer
and have signed the certificate below
Our verdict is not unammous Ten of us have agreed to each and every answer and
have signed the certificate below
NAAΠPRINTED
1
4 /
7
ISA JEA CoLE
11
26
35197
x i it
35198
1968
. r
0 1.000
feet i.
1% a se A
Figure 6a
35199
FILED
Chris Daniel
'
CAUSE NO 201 I-76724
HARRIS COUNTY, TEXAS, Plaintiff § IN THE DISTRICT COURT OF
and §
§
THE STATE OF TEX AS, acting by and through §
the TEXAS COMMISSION ON §
ENVIRONMENTAL QUALITY,A Necessary and § HARRIS COUlfY, TEXAS
Indispensable Party, §
§
v. §
§
INTERNATIONAL PAPER COMPANY, §
MCGINNES INDUSTRIAL MAINTENANCE § 295TH JUDICIAL DISTRICT
CORPORATION, WASTE MANAGEMENT,
INC., AND WASTE MANAGEMENT OF
TEXAS, INC., Defendants.
FINAL JUDGMENT
On October 16, 2014, the above cause of action was called for trial before a jury of
twelve persons who were duly accepted, impaneled, and swom. Plaintiff Harris County, Texas
appeared by and through its attomeys and announced ready for trial. The State of Texas, acting
by and through the Texas Commission on Environmental Quality, a necessary and indispensable
party, appeared by and through its attomeys and announced ready for trial. Defendant
Intemational Paper Company appeared by and through its attomeys and announced ready for
trial. Former Defendants McGinnes Industrial Maintenancc Corporation and Waste
Management of Texas, Inc. appeared by and through their respective attorneys and announced
ready for trial. Before trial began, however, the Court dismissed PlaintiffHarris County, Texas's
claims against former Defendant Waste Management, Inc. on the latter party's motion.
After all parties rested, on November 13, 2014, Plaintiff Harris County, Texas, the State
of Texas, acting by and through the Texas Commission on Environmental Quality, and former
Defendants McGinnes Industrial Maintenance Corporation, Waste Management of Texas, Inc.,
and Waste Management. Inc. announced a settlement of the claims by and against these parties,
but not Defendant Intemational Paper Company. On the joint motion of said parties, but not
RECORDER'S MEMORANDUM
quality
TNs instrument is of poor
at the time of imaging
35217
Defendant International Paper Company, the Court severed the claims by and against those
settimg parties and assigned a new cause number ("2011-76724A") for those claims.
Accordingly, no issues on any claims by or against former Defendants McGinnes Industrial
MaintenanceCorporation, Waste Management of Texas, Inc., and Waste Management, Inc. were
submitted to the jury.
On November 13, 2014, after presentation of the testimony, evidence, arguments of
counsel, and instmctions of the court, the special issues were submitted to the jury as set forth in
the Charge of the Coun. In response, the jury returned its verdict on that same date of November
13, 2014, which the Coun received, filed, and entered of record. The questions submitted to the
jury and the jury's findings are attached as Exhibit "1" and incorporated by reference in their
entirety and are summarized as follows:
QUESTION ONE: Do you find that any of the followingDefendants caused, suffered,
allowed, or pernitted the discharge of industrial waste containing dioxin into or adjacent
to any water in the state at any time from February 15, 1973, until March 30, 2008?
ANSWER FOR CHAMPION PAPER: No.
ANSWER FOR INTERNATIONALPAPER: No.
QUESTION TWO: For each Defendant for whom you answered "Yes" in Question One,
identify each violation date or range of dates on which consecutive daily violations, if
any, by such Defendant occurred.
IN ACCORDANCE WITH THE COURT'S INSTRUCTION, NO ANSWER
WAS PROVIDED BASED ON ANSWERS TO QUESTIONONE.
QUESTION THREE: What amount of money should be assessed against each
Defendant as a penalty for each day you found a violation in response to Question Two?
IN ACCORDANCE WITH THE COURT'S INSTRUCTION, NO ANSWER
WAS PROVIDED BASED ON ANSWERS TOQUESTIONONE.
QUESTION FOUR: Do you find that any of the following Defendants caused, suffered,
allowed, or permitted the handling or disposal of industrial solid waste containing dioxin
in such a manner so as to cause the discharge or imminent threat of discharge of
35218
industrial solid waste containing dioxin into or adjacent to the water in the State at any
time from December 31, 1975, until March 30, 2008?
ANSWER FOR CHAMPION PAPER: No.
ANSWER FOR INTERNATIONALPAPER: No.
QUESTION FIVE: For Defendant for whom you answered "Yes" in Question
each
Four, identify each violation of dates on which consecutive daily violations,
date or range
if any, by such Defendant occurred.
IN ACCORDANCE WITH THE COURT'S INSTRUCTION, NO ANSWER
WAS PROVIDED BASED ON ANSWERS TO QUESTION FOUR.
QUESTION SIX: What amount of money should be assessed against each Defendant as
a penalty for each day you found a violation to Question Five?
IN ACCORDANCE WITH THE COURT'S INSTRUCTION, NO ANSWER
WAS PROVIDED BASED ON ANSWERS TO QUESTION FOUR.
QUESTION SEVEN: What is for the services of the Connelly Baker
the reasonable fee
Wotring LLP Law Firm representing Harris County in bringing this civil-penalty case,
staled in dollars and cents?
IN ACCORDANCE WITH THE COURT'S INSTRUCTION, NO ANSWER
WAS PROVIDED BASED ON ANSWERS TO QUESTIONS ONE AND
FOUR.
QUESTION EIGHT: Were any of the violations you found in Questions One and/or
Four caused solely by an act of God?
IN ACCORDANCE WITH THE COURT'S INSTRUCTION, NO ANSWER
WAS PROVIDED BASED ON ANSWERS TO QUESTIONS ONE AND
FOUR.
QUESTION NINE: Identify by date, or range of dates, when the violations that you
found in Questions One and/or Four were caused solely by an act of God.
IN ACCORDANCE WITH THE COURT'S INSTRUCTION, NO ANSWER
WAS PROVIDED BASED ON ANSWERS TO QUESTIONS ONE AND FOUR
AND LACK OF ANSWER TO QUESTIONEIGHT.
QUESTION TEN: On any day after September 1, 1997, were any of the Defendants
Ested below also a person responsible for solid waste?
IN ACCORDANCE WITH THE COURT'S INSTRUCTION, NO ANSWER
WAS PROVlDED BASED ON ANSWERS TO QUESTION FOUR.
35219
QUESTION ELEVEN: Were any of the violations you found in Question Four caused
solely by acts or omissions of a third person?
IN ACCORDANCE WITH THE COURT'S INSTRUCTION, NO ANSWER
WAS PROVIDED BASED ON ANSWERS TO QUESTION FOUR AND LACK
OF ANSWER TO QUESTIONTEN.
QUESTIONTWELVE: which dates were the violations that formed the basis of your
On
answer to Question Four caused solely by acts or omissions of a third person?
IN ACCORDANCE WITH THE COURT'S INSTRUCTION,NO ANSWER
WAS PROVIDED BASED ON ANSWERS TOQUESTION FOUR AND LACK
OF ANSWER TO QUESTION ELEVEN.
After the jury was released, Defendant International Paper Company moved for judgment
based on the verdict. Having considered that motion, the arguments of counsel, and all matters
of record, the Court finds that with respect to the claims against Defendant International Paper
Company, including its predecessors in interest, the jury's verdict is in favor of Defendant
Intemational Paper Company, including its predecessors in interest, and against Plaintiff Harris
County, Texas, the State of Texas, and the Texas Commission on Environmental Quality. The
Court is therefore of the opinion that, on the merits, judgment should be rendered in favor of
Defendant Intemational Paper Company and against Plaintiff Harris County, Texas, the State of
Texas, and the Texas Commission on Environmental Quality in conformance with the pleadings,
the nature of the case proved, and the jury's verdict. The Court hereby renders the Final
Judgment as follows:
It is ORDERED, ADJUDGED, AND DECREED that PlaintiffHarris County, Texas, the
State of Texas, and the Texas Commission on Environmental Quality recover nothing on all
claims against Defendant Intemational Paper Company.
It is further ORDERED, ADJUDGED, AND DECREED that Defendant Intemational
Paper Company's counterciaims for declaratory judgment are DISMISSED AS MOOT AND
35220
WITHOUTPREJUDICE, subject to Defendant Intemational Paper Company's right to try those
counterclaims in the event this cause of action is reversed or remanded by appeal.
The Court finds that Defendant Intemational Paper Company is the successful party as
that term is used in Texas Rule of Civil Procedure 131 and further ORDERS that Plaintiff Hams
County, Texas shall pay to Defendant Intemational Paper Company all taxable costs, consisting
of all fees of the clerk, all service fees, and all fees of the court reporters for the original of
stenographie deposition, hearing, and trial transcripts and exhibits obtained for use in the suit.
The Court ORDERS execution to issue for this Final Judgment as allowed by law in
favor of Defendant International Paper Company, and further ORDERS that all writs and process
for the enforcement and collection of this Final Judgment may issue as necessary.
It is further ORDERED, ADJUDGED, AND DECREED that all requested relief by
Plaintiff Harris County, Texas, the State of Texas, acting by and through the Texas Commission
on Environmental Quality, or Defendant Intemational Paper Company that is not expressly
granted or denied herein is hereby DENIED.
This is the Final Judgment of the Court, which disposes of all claims and all parties, and
is appealable.
35221
Signed this th day of January, 2015.
JAN 2 0 2015
Judge Caroline E. Baker
35222
FILED
ociŠ$Ïcgacg
No. 2011-76724
APR 0 6 2015
HARRIS COUNTY,TEXAS, § IN THE DISTRICT COURTOF
Plaintiff §
§ HARRIS COUNTY,TEXAS
and §
295th JUDICIAL DISTRICT
§
THE STATE TEXAS, acting by and
OF §
through the TEXAS COMMISSIONON §
ENVIRONMENTALQUALITY, a §
necessary and indispensable party §
§
VS. §
§
INTERNATIONAL PAPER COMPANY, §
MCGINNESINDUSTRIAL §
MAINTENANCECORPORATION, §
WASTE MANAGEMENT, INC., AND §
WASTE MANAGEMENT OF TEXAS, §
Defendants §
No. 2012-58016
Dao Van Pho, et al., Plaintiffs § IN THE DISTRICT COURTOF
§
VS. § HARRISCOUNTY,TEXAS
§
InternationalPaper Company, et «L, § 125"' JUDICIAL DISTRICT
Defendants §
No. 2012-66308
Jim Harpster and Jennifer Harpster, §
et al., Plaintiffs § IN THE DISTRICTCOURTOF
§
VS. § HARRISCOUNTY,TEXAS
§
InternationalPaper Company, et al., §
110' JUDICIAL DISTRICT
Defendants §
§
ORDER
Carne on to be heard Plaintiff Harris County'sMotion for New Trial Upon
consideration, the Court DENIES Plaintiff Harris County's Motion for New TriaL
MEMORANDUM
RECORDER'S quality
instrument is of poor
This imagmg
of
at the time
35637
Signed tlus 6 day of April, 2015
APR 0 6 2015
JUDGE PRESIDING
35638
4/17/2015 10:40 08 AM
Chris Daniel - District Clerk Harris County
Envelope No. 4929587
By: Phyllis Washington
Filed 4/17/2015 10:40:08 AM
No. 2011-76724
Harris County, Texas, er al.. Plaintig § IN THE DISTRICT COURT OF
§
v. § HARRIS COUNTY. TEXAS
Intemational Paper Company, et al., §
DefendHarris County v. International Paper Company
Combined Opinion